Exhibit 10.2
Form 10-KSB
Virtualmoney, Inc.
File No. 000-31009
AMENDED AND RESTATED CONSULTING AGREEMENT
This AMENDED AND RESTATED CONSULTING ENGAGEMENT (this
"Agreement") is entered into between Bluewater Information
Convergence, Inc., a Delaware corporation ("Bluewater") having a
place of business at 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000, and Virtualmoney, Inc ("Client") with a
place of business at Plymouth, MN, effective upon execution of
this Agreement.
RECITALS
WHEREAS, Client desires to expand the scope of the original
Consulting Agreement, originally
dated August 14, 2000 and is further amended and restated as
reflected in this Agreement;
WHEREAS, Client desires to engage Bluewater to perform and
provide Client with certain consulting services as requested by
Client; and
WHEREAS, Bluewater is willing to perform and provide Client
with such consulting services,
NOW, THEREFORE, in consideration of the representations and
agreements contained herein, the parties hereby agree as follows:
1. The Engagement
1.1 Bluewater will perform the services described in
Attachment A ("Services"), as described more fully in the project
proposal entitled, "Xxxxxxxxxxxx.xxx Project Proposal," dated
August 1, 2000. This will take approximately fourteen (14) weeks,
from August 14, 2000, to complete.
1.2 Bluewater will provide adequate personnel resources
throughout this engagement to deliver on the Services. Such
personnel resources will be identified prior to their engagement
and introduced to the Client.
1.3 Throughout the engagement, Bluewater will provide to the
Client weekly goal and progress reports on the delivery of
Services. Bluewater will also provide any other management
review, quality control and account management reports as
reasonably required or requested to ensure successful completion
of the engagement.
E-10
1.4 No additional services will be performed unless
Bluewater and Client have executed a written authorization
expanding the Services which shall be described in an attachment
to this Agreement.
Virtualmoney,lnc. Amended and Restated
Project Agreement
2. Compensation.
2.1 The total cost for Services will be $116,000 plus out-
of-pocket expenses. An initial fee of $12,500 has been received
as a retainer to be applied against future xxxxxxxx. A payment of
$12,500 is payable upon return of an executed copy of this
Amended and Restated Agreement. Client agrees to pay $25,000 on
or before September 22, 2000; $36,000 on or before October 13,
2000 and the remaining $30,000 upon completion of this
engagement.
2.2 All invoices shall reflect a description of the work
performed consistent with Attachment A. Any amounts that are not
paid when due shall incur a late fee of 1.5% per month from the
due date until paid.
2.3 Client will pay all travel and living expenses incurred
by Bluewater in connection with the performance of the Services.
Expenses will be delineated on the same invoice as services and
will be subject to the same payment terms. Bluewater will submit
estimates for any travel to allow Client to approve expenses in
advance.
2.4 In the event of termination of this Agreement, Client
shall pay the remainder of any unpaid total cost for Services.
All out-of-pocket expenses incurred up to the date of termination
shall be reimbursed by Client, provided Bluewater submits
documentation for each expense.
3. No Solicitation for Employment. During the term of this
Agreement and continuing for a period of twelve (12) months
thereafter, each party, and any resources of Bluewater retained
for performance of the Services, will not, without first
obtaining agreement from the effected party, (i) directly or
indirectly induce or influence any employee or sub-contractor of
the other party to terminate his or her employment relationship
with that party; or (ii) employ or offer to employ or sub-
contract any employee or sub-contractor of the other party. The
parties agree that this paragraph may be enforced by injunction
or other equitable remedy.
4. Confidentiality; Press Releases
4.1 Neither party shall disclose (whether orally or in
writing, or by press release or otherwise) to any third party any
information with respect to the terms and provisions of this
Agreement, any information contained in any data or report
required or delivered hereunder, or any materials related
thereto, including without limitation, the Proprietary
Information (as defined herein), except: (a) to each party's
respective officers, directors, employees, auditors and attorneys
who have a need to know such information (collectively,
"Necessary
E-11
Personnel"), in their capacity as such; provided that
such Necessary Personnel understand and agree to abide by the
provisions of this Section 5; and provided further, that the
disclosing Party shall be responsible for any breach of the
provisions of this Section 5 by such Necessary Personnel; (b) to
the extent necessary to comply with the law or with the valid
order of an administrative agency or court of competent
jurisdiction; or (c) to enforce the Parties' obligations
hereunder.
4.2 "Proprietary Information" means any non-public ideas,
plans or information, including without limitation, information
of a technological or business nature (including without
limitation, all trade secrets, technology, intellectual property,
transmission characteristics, transponder composition, equipment
specifications, data, summaries, reports or mailing lists,
whether written or oral and, if written, however produced or
reproduced) that is received by the
Bluewater Information Convergence, Inc, Proprietary
Page ii
Virtualmoney,lnc. Amended and Restated
Project Agreement
receiving Party or otherwise disclosed to the receiving Party
from or by the disclosing party. Proprietary Information must be
(i) marked as confidential or proprietary, or bear a marking of
like import; (ii) stated by the disclosing Party to be considered
proprietary or confidential; or (iii) logically considered
proprietary or confidential under the circumstances of its
disclosure. Information will not be deemed to be Proprietary
Information, and the receiving Party shall have no obligation
with respect thereto, or to any party thereof, to the extent such
information (A) is approved by prior written authorization of the
disclosing Party for release by the receiving Party; (B) is
disclosed in order to comply with a judicial order issued by a
court of competent jurisdiction or with government laws or
regulations, in which event the receiving Party shall give prior
notice to the disclosing Party in using all reasonable efforts to
obtain an appropriate protective order or equivalent, provided,
that the information shall continue to be Proprietary Information
to the extent it is covered by such protective order or
equivalent; (C) becomes generally available to the public through
any means other than a breach by the receiving Party of its
obligations under this Agreement; (D) was in the possession of
the receiving Party without obligation of confidentiality prior
to receipt or disclosure under this Agreement as evidenced by
written records made prior to such receipt or disclosure; or (E)
is developed independently by the receiving Party without use or
benefit of the Proprietary Information.
5. Form of Business.
5.1 In performing the Services for Client, Bluewater will
act as an independent contractor and not as an agent or an
employee of Client. The arrangement between Client and Bluewater
will not constitute a partnership or joint venture or similar
relationship and neither Bluewater nor Client can bind the other
in any contract, arrangement or other understanding.
E-12
5.2 All persons furnished, used, retained or hired by or on
the behalf of Bluewater shall be considered to be solely the
employees or agents of Bluewater. Bluewater shall be responsible
for payment of any and all unemployment, social security, and
other payroll related taxes for its employees and agents, if and
as applicable, including any related assessments and
contributions required by law.
6. Indemnification. Bluewater shall indemnify, defend and hold
harmless, Client its directors, officers, employees, and agents
from and against any and all liability, damages, costs or
expenses (including reasonable attorneys' fees and costs)
("Claims") arising out of damages or injuries to person or
property, including without limitation injury or death, caused by
Bluewater while performing the Services, or arising out of a
breach or alleged breach of any of the provisions of this
Agreement. Client shall have the right to participate in the
defense of any such action, and to be represented by counsel of
its selection, at its sole cost. Bluewater shall not settle,
compromise or otherwise voluntarily dispose of such Claims
without Client's prior consent, not to be unreasonably withheld
or delayed.
7. Ownership.
7.1 Bluewater acknowledges and agrees that, for the
purposes of U.S. copyright law, the results and proceeds of
Bluewater's services and any works created in connection with
this Agreement shall be deemed works made for hire, and that
Client shall be deemed the author of such works. All right and
title to, and interest in such result and proceeds in such works,
and any and all elements thereof, shall be Client's sole and
exclusive property.
Bluewater Information Convergence, Inc. Proprietary Page iii
Virtualmoney,lnc. Amended and Restated Project Agreement
7.2 Any and all materials that Client provides to Bluewater
in connection with this Letter Agreement, or that may be
developed with Bluewater's cooperation or contribution in the
course of Bluewater's performance of Bluewater's services
hereunder, shall be and remain Client's sole property. Bluewater
hereby represents and warrants that Bluewater shall not make any
claims with respect to any such materials.
8. Termination. Client has the right to terminate this
Agreement by providing a 5 day written notice prior to
termination. Upon such termination, Bluewater shall promptly
deliver to Client all work-in-progress developed and or created
in connection with the Services rendered hereunder, and Client
shall provide payment as noted in paragraph 2.4 of this
Agreement.
9. Warranties. Bluewater warrants that services will be
performed in a first class professional manner in accordance
with customary industry practice.
10. Limitation of Liability. Neither party shall have any
liability to the other for special, incidental, consequential,
punitive or exemplary damages arising from this Agreement or any
acts or omissions associated therewith or the services provided
hereunder.
13
11. Xxx Xxxxx is hereby designated as the Client Service
Coordinator for this Agreement. The Service Coordinator shall
be responsible for administering this Agreement and for
coordinating all activities relating to the performance of
Services thereunder. All Bluewater personnel will be responsible
to the Client Service Coordinator and report to that individual.
12. Choice of Law, Jurisdiction and Venue. Bluewater hereby
consents to and submits to the jurisdiction of the federal and
state courts located in the State of New York, and any action or
suit under this Agreement may be brought in any federal or state
court with appropriate jurisdiction over the subject matter
established or sitting in the State of New York. In the event of
legal action requiring travel out of Minnesota, each party is
responsible for all their own expenses, including travel costs.
Bluewater and Client shall not raise in connection therewith, and
hereby waives, any defenses based upon venue, inconvenience of
the forum, lack of personal jurisdiction, sufficiency of service
of process, or the like.
Virtualmoney, Inc. Bluewater Information
Convergence, Inc.
By:/s/ Xxxxxx X. Xxxxx By:/s/ Xxxx X. Xxxxx
Xxxxxx X Xxxxx, President & CEO Xxxx X. Xxxxx, EVP,
Operations
Date: 9/7/00 Date:9/8/00
Bluewater Information Convergence, Inc. Proprietary Page iv
Virtualmoney,lnc. Amended and Restated Project Agreement
E-14
ATTACHMENT A
Bluewater Information Convergence, Inc. agrees to provide systems
development and integration services to Virtualmoney, Inc. for
the Phase 1, 11 and 11 work required of the new Internet web site
project. Bluewater is to develop the web site following the
Requirements section as a guideline for project definition.
Requirements
* Design and implement architecture of web site.
* Design and implement a basic web site layout.
* Allow account owners to login and view their account balance
and transaction history.
* Allow trusted users (Virtualmoney operators) to add/update
account information through a
basic user interface. This includes setting up/maintaining
user accounts and depositing/withdrawing, dollars from accounts.
Users will be notified of account activity via e-mail.
* Allow trusted users (Virtualmoney operators) to update the
millennium dollar parameters
(CPI-U) through a system administration screen.
* The system will perform currency conversion of US dollars
to/from millennium dollars.
* Allow users to open Xxxxxxxxxxxx.xxx a personal/joint
account and a business account using the web site
(Automated Process).
* Allow users to add-funds and withdraw money using the web
site. The Add-Funds and Withdraw tasks will be processed with
the operator's intervention in the back end (Semi
Automated Process). Users will be notified of account
activity via e-mail.
* Allow users to maintain their account profile information.
Users will be allowed to administer email, address, phone,
and password changes.
* Allow users to close their Virtualmoney account.
* Allow users to Send MR$ with funds in their accounts
(Automated Process). Sender and Recipients will be notified
of the transaction pending. Recipients without a Virtualmoney
account will be invited to open an account and claim the MR$.
Deliverables
* Deploy new website on the Internet.
* Set up web & database server on Bluewater servers.
* Technical documentation of the database and system
architecture
Resources
Bluewater will provide the appropriate resources to fulfill the
objectives and responsibilities of this engagement throughout its
duration.
2
Schedule
Bluewater will deliver the new website within approximately
fourteen (14) weeks from the execution of the original Agreement,
dated August 14, 2000.
Assumptions
To keep within the contract's timeline:
* All appropriate Virtualmoney representatives will be
available as necessary.
* Materials submitted to Virtualmoney for input are to be
reviewed and returned in a timely manner.
Bluewater Information Convergence Inc.
E-16
