Exhibit 10.8
SOFTWARE DEVELOPMENT AGREEMENT
THIS SOFTWARE DEVELOPMENT AGREEMENT (the "Agreement") is made effective
September 1, 2004, (the "Effective Date") by and between MONEY CENTERS OF
AMERICA, INC., ("MCA") a corporation with a business address of 000 Xxxxx
Xxxxxxxxx Xxxx, Xxxx xx Xxxxxxx, XX 00000 (hereinafter "Client") and INTUICODE,
LLC, a Florida limited liability company, with a business address at 000 Xxxxxx
Xxxx, Xxxx Xxxxx, XX 00000 (hereinafter "Provider").
RECITALS:
WHEREAS, Client seeks to develop, license and operate software including
custom applications, websites, server access and data storage (the "Software",
as more fully defined below), and obtain related technical support, maintenance
services and technical training for employees; and
WHEREAS, Provider is a full service interactive services provider offering
various services, including but not limited to customized computer software
applications, including server access and data storage, software development
services, technical support; and training services;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
conditions contained herein, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, Provider and Client, with the intent to
be legally bound, agree as follows:
1. Purpose. Provider shall develop and deliver to Client Software that
shall (i) operate and (ii) support an MCA-designed, secure MCA Web Site (the
"MCA Web Site") for use in connection with Client's business of providing cash
access services to the gaming industry (the "Business"). Provider shall also
provide MCA with (iii) ancillary technical support, maintenance and employee
training for term of this Agreement (hereinafter (i), (ii) and (iii) are
collectively referred to as "Services"). All Services shall be performed as set
forth in this Agreement and its Exhibits, as they may be amended.
2. Appointment.
2.1. Work. Client employs and retains Provider to develop the Software and
to perform the Services (the Software and MCA Web Site, along with all related
documentation, and Services shall be collectively referred to as "Work")
described in Exhibit "A" ("Exhibit A") and any modifications thereto (Exhibit A
and any modifications hereto shall be identified as "Statements of Work").
Provider accepts such engagement and agrees to use its best efforts to undertake
and complete the Work on a timely basis in accordance with this Agreement,
Exhibits, and any supplemental terms and conditions.
2.2. Standards. Provider shall ensure that all Services are provided by
personnel skilled in the development of computer software applications and
systems, and in computer technical support, maintenance and training services,
as required. Provider shall coordinate the initiation of Services with Verio or
some other third party Internet Services Provider acceptable to Client. Provider
shall make its personnel available for meetings with Client as reasonably
requested by Client. Provider shall perform its obligations (and cause its
personnel to perform Services) under this Agreement and all Statements of Work
in a professional and workmanlike manner and in accordance with the usual and
customary standards of accuracy, proficiency and care for software professionals
2.3. Performance. Subject to the terms of this Agreement, Provider shall
determine the method, details, and means of performing the Work to be performed
hereunder, subject to the approval of Client. With the permission of Client,
Provider may engage subcontractors to perform any of the Work hereunder,
including web hosting; provided that any person so engaged shall be subject to
provisions of this Agreement.
3. Software and MCA Web Site.
3.1. Specifications and Acceptance Tests. Upon the execution of this
Agreement, and from time to time thereafter following any Change Order that
relates to a new project, Provider shall, in consultation with Client, prepare
specifications for the related Work, which shall include a design for
programming and interactive feature requirements and the placement of content or
other materials to be incorporated into the Software or the MCA Websites (the
"Specifications"). Once Provider has designed the Specifications, they will be
delivered to Client together with proposed acceptance tests. Upon receipt of the
Specifications and acceptance tests, Client will either approve or disapprove of
the Specifications and acceptance tests. Such approval will be at the sole
discretion of Client. If Client does not approve the Specifications and/or
acceptance tests, Provider shall revise the Specifications and/or acceptance
tests as directed by Client. Upon final approval of the Specifications and
acceptance tests, the Parties shall thereafter mutually proceed with the
development and implementation of the related Work according to the
Specifications.
3.2. Development. Upon the execution of this Agreement, Provider shall
commence work upon and diligently proceed with the development of Work in
conformity with the Specifications and performance standards set forth in
Statements of Work attached to this Agreement. "Software" shall include computer
programming, formatting code or operating instructions either previously
developed by Provider or developed pursuant to this Agreement and used to create
any portion of the MCA Web Site, incorporated into the MCA Web Site, or used to
operate the MCA Web Site or a Web Server in connection with the MCA Web Site
(such as, for example, HTML, Perl, C, C++, Java, Java Script, Linux, PHP, Visual
Basic Script and VRMI code). Software includes, but is 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 ether programs, customized graphics,
manipulation engines, and menu utilities, whether in database form or
dynamically driven. Software also includes all technical documentation required
for modification and/or maintenance of the Software and all operator and user
documentation. "MCA Web Site'' means the MCA Web Site for the public Internet or
for corporate intranets or extranets to be developed by Provider for Client.
3.3. Budget and Timetable. Provider shall commit and utilize sufficient
resources to complete development of the Work within the timetable set forth
herein. Provider shall use its best efforts to complete each element of the Work
by the delivery date set forth in the Statements of Work (a "Delivery Date").
Provider shall provide Client with detailed information regarding the status of
the Work and estimated completion dates on a regular basis (no less frequently
than bi-monthly) and upon Client's request
3.4. Change Orders. If at any time during the term of this Agreement either
party should desire to recommend an addition, modification or change to the
Software or the MCA Web Site, or to add additional projects to the terms of this
Agreement, the parties shall agree in writing as to the modifications to be made
and timetable for same (each, a "Change Order"). Notwithstanding the foregoing,
Provider agrees that Client shall have final authority to accept or reject any
proposed addition, modification or change made by Provider, and to direct
reasonable additions, modifications or changes to the Software and/or the MCA
Web Site. Any Change Order shall amend and become part of the Specifications or
Statements of Work, as applicable.
3.5. Acceptance and Delivery.
3.5.1 Upon completion of each discrete element of the Software (a
"Deliverable"), or earlier at Client's request, Provider shall deliver to
Client such Deliverable in machine-readable form of the executable code,
appropriate for acceptance testing.
3.5.2 Upon receipt of a Deliverable, Client shall perform acceptance
tests to determine whether (i) the Software and (ii) the MCA Web Site
design, programming and other Web management features conform to the
Specifications. Client may (i) accept a Deliverable as delivered
("Acceptance") or (ii) reject a Deliverable by reason of a reproducible
error, problem, or defect resulting from: an incorrect functioning of the
Software that affects the functionality of the MCA Web Site in any material
respect; any failure of the Work delivered to Client hereunder to meet the
Specifications, or any other failure by such Deliverable to meet the
agreed-upon acceptance test or otherwise substantially conform to the
Specifications current at the time of delivery. Client shall notify
Provider of such rejection promptly in writing and shall provide all
available information in reasonable detail to enable Provider to correct
such non-conformity.
3.5.3 Upon notification of rejection as specified in paragraph (a)
above, Provider shall correct the non-conformity within twenty (20) days
without additional charge to Client and resubmit the Deliverable, in which
case the procedure for the review and Acceptance of such Deliverable (as
set forth in paragraph (a) above) shall be repeated until such Deliverable
is Accepted.
3.5.4 Upon Acceptance of each Deliverable, or earlier at Client's
request, Provider shall deliver to Client one complete copy in
machine-readable form of the final source code, object code, executable
code and all associated documentation for such Deliverable, one complete
copy of the foregoing in printed form and complete written instructions for
compiling and linking the source code into executable forms, and all
related documentation.
3.5.5 Within ten (10) business days after Client's acceptance of the
Final Deliverable, Provider will deliver all Work to Client. "Final
Deliverable" means the final version of the Software and MCA Web Site, with
source and object code and technical and operational documentation,
"delivered" (available for regular use) to Client subsequent to (i)
Provider's final testing and quality assurance procedures and (ii) Client's
successful acceptance testing.
3.6. Third Party Software. Certain commercially available software will be
used in the development of or to display or run the MCA Web Site (such as a
standard authoring program or platform or off-the-web software), which is owned
by a company or individual other than Provider, and is generally available to
the public, including Client, under published licensing terms ("Third Party
Software"). Provider shall assist Client in selecting and acquiring Third Party
Software and shall, as part of the Services, adapt and integrate such Third
Party Software into the Deliverables. In the event that Provider acquires any
Third Party Software on behalf of Client, Provider shall acquire all rights
necessary for use of such Third Party Software in the Software, shall assign
such rights to Client and shall take such steps as are reasonably necessary to
preserve any warranty rights with respect thereto. Provider shall provide Client
with copies of all relevant license and warranty documents. Upon the release of
any updates, new releases or new versions of any Third Party Software, Provider
shall assist Client in integration of such update, new release or new version
into the Software. Provider will be responsible for payment for, and entering
into appropriate licensing agreements concerning Thirty Party Software required
for the development of the MCA Web Site. Unless otherwise specified in the
Statement of Work, Client will be responsible for payment for, and entering into
appropriate license agreements concerning use of Third Party Software required
to run and display the MCA Web Site.
4. Services.
4.1. Specifications and Launch. Upon execution of this Agreement, Provider
shall work with Client to devise the Specifications as provided above and design
and implement a network configuration, in accordance with Client's requirements
as set forth in Exhibit "A" (as it may be amended). Provider shall also install
and troubleshoot the Software, and configure the MCA Web Site in accordance with
the Specifications. Provider shall provide ongoing technical support and other
web and server maintenance services throughout the process of the development of
the Work until the date of acceptance of the Final Deliverable.
4.2. MCA System Expenses. Client shall lease or purchase all necessary
computer equipment and peripherals, electronic access and related equipment and
supplies required to operate the Business in accordance with the Specifications
with assistance from Provider.
4.3. Technical Support Services. Beginning on the date of the acceptance of
the Final Deliverable by Client, Provider shall continue to provide technical
and software support and maintenance service terms. Such Provider Services shall
include troubleshooting the Software and MCA Web Site, conveying advice,
training Client staff in the operation and maintenance of the MCA Web Site, and
working to ensure that Client's MCA Web Site is fully operational and secure at
all times (the "Services"). In addition, Provider shall provide training to
Client personnel in the operation of the Software and the MCA Web Site,
including training such personnel to provide subsequent training to Client
customer personnel in the use of the Software and MCA Web Site, as reasonably
requested by Client.
4.4. Place of Service Performance. All Services provided under this
Agreement shall be provided on a remote basis, unless Client, in its sole
discretion, requires Provider to deliver Services at Client's facility in King
of Prussia, Pennsylvania at Client's cost.
5. Compensation.
5.1. Payments. As compensation for the Software, Website and Services
delivered by Provider hereunder, Client hereby agrees to pay Provider the sum of
Thirty Five Thousand Dollars ($35,000) per month for the Term of this Agreement.
Payments shall be made on or before the 15th of each month in arrears; provided
that the last installment during the initial term of this Agreement shall not be
due until Client has accepted the Final Deliverable.
5.2. Advances. In the event either party advances the other any costs, fees
or expenses, such sums shall be billed monthly and repaid within thirty (30)
days after receipt by payee of a detailed invoice or upon such other terms as
mutually agreed to by the parties.
6. Term and Termination.
6.1. Term. This Agreement shall be effective when signed by both parties
and thereafter shall remain in effect for a period of one (1) year unless sooner
terminated or later extended pursuant to the provisions of this Section 6. In
the event the work, timetable and/or cost are adjusted, all amendments
reflecting these changes shall be mutually ratified in writing; the term shall
then be modified to account for any accepted changes to this Agreement.
6.2. Termination for Cause. In the event that either party hereto
materially defaults in the performance of any of its duties or obligations under
this Agreement (except for a default pursuant to Section 6.3) and does not
substantially cure such default, or commence a cure, within thirty (30) days
after being given written notice specifying the default, then the non-defaulting
party may, by giving written notice thereof to the defaulting party, terminate
this Agreement as of a date specified in such notice of termination.
6.3. Termination for Non-Payment. In the event that Client defaults in the
payment when due of any amount due to Provider hereunder and does not cure such
default within thirty (30) days of the date of the invoice, then Provider may,
by giving written notice thereof to Client, terminate this Agreement and all
work as of a date specified in such notice of termination.
6.4. Termination for Insolvency. In the event that either party hereto
becomes or is declared insolvent or bankrupt, is the subject of any proceedings
relating to its liquidation, insolvency or for the appointment of a receiver or
similar officer for it, makes an assignment for the benefit of all or
substantially all of its creditors, or enters into an agreement for the
composition, extension, or readjustment of all or substantially all of its
obligations, then the other party hereto may, by giving written notice thereof
to such party, terminate this Agreement as of a date specified in such notice of
termination.
6.5. Termination on Change in Control. In the event that Client or its
parent holding company enters into a transaction which will result in either (i)
the sale of all or substantially all of Client's assets, or (ii) the ownership
of more than 50% of the voting capital stock of Client or its parent holding
company by persons who do not hold more than 50% the such voting capital stock
of Client's parent holding company as of the date hereof, then Client may
terminate this Agreement at any time thereafter on thirty (30) days' written
notice to Provider.
6.6. Effect of Termination. Upon termination of this Agreement by Provider,
or by Client under Section 6.5, Client shall be obligated to pay Provider for
all services satisfactorily rendered, as determined by the Client, pursuant to
this Agreement and any outstanding Statements of Work through the effective date
of such termination. In the event Client terminates this Agreement under Section
6.2, Client shall have no further payment obligations hereunder, and Provider
shall promptly deliver to Client those materials described in Sections 3.5.4 and
3.5.5. Client shall have all other remedies available to it at law or in equity,
all of which shall be cumulative and may be exercised singly or in concert and
in such order as Client may elect.
6.7. Survival. Termination of this Agreement by either party pursuant to
the provisions of this Section 6 shall terminate each party's obligations under
this Agreement except for the provisions of Sections 7, 8, 10 and 12 through 15,
all of which shall survive termination of this Agreement.
7. Confidentiality.
7.1. Disclosure. During the course of performance of this Agreement, each
party may disclose to the other certain confidential information as defined in
this Section 7. 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.
7.2. Definition. "Confidential Information" means any information provided
by either party or prepared by either party (either oral, written or digital)
upon 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 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.
7.3. Exclusions. 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.
7.4. Required Disclosure. 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.
7.5. Injunctive Relief. Each party agrees that its obligations provided in
this Section 7 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.
8. Ownership of Work.
8.1. Ownership. Client shall own all worldwide right, title and interest in
and to the work product delivered hereunder, specifically including any patent,
copyright, trademark, trade secret or any other intellectual property right,
including, without limitation, the exclusive right to collect, copy, reproduce,
make, use, sell, market and distribute the Software, MCA Web Site and
information resulting there from for itself and others. Client shall own all
right, title and interest in and to the Software and in other Deliverables
(excluding Third Party Software constituting a part thereof), and Provider
acknowledges and agrees that the Software and other Deliverables shall be
considered "work[s] made for hire" under the U.S. Copyright Act, 17 U.S.C. 101
et seq., and any right, title and interest therein, including without limitation
all copyrights, patent rights, trade secrets, trademarks and other proprietary
rights thereto, will belong solely to Client. To the extent that any Deliverable
is not considered a "work made for hire", Provider hereby assigns and transfers
to Client all of Provider's right, title and interest therein.
8.1.1 Provider represents and warrants that it has sufficient right,
title, interest or permission in and to content and materials incorporated
in the Software or any Deliverable for Client to make use of the Software
as is contemplated by this Agreement. Provider further represents and
warrants that the Software and all Deliverables as delivered will not
infringe any copyrights, patents, trade secrets, trademarks, service marks,
rights of privacy or publicity of any third party, nor will they to
Provider's knowledge defame or libel any person or entity. Provider further
represents and warrants that the Software will be of original development
by Provider, will be developed expressly for fulfillment of this Agreement,
will not violate any copyrights, patents, trade secrets or proprietary
rights of any person and that pursuant to Section 8.1 hereof Client shall
have all right, title and interest therein free and clear of any claims of
Provider or any third parties. Provider hereby agrees to defend, indemnify,
and hold harmless Client, its principals, agents, officers, directors and
employees from and against any and all claims arising from or related to
Provider's breach of any of the foregoing representations and warranties.
The foregoing indemnity obligation is conditioned upon (i) prompt written
notice by Client to Provider of any such claim of which Client becomes
aware, (ii) Provider's complete control of the defense of any such claim,
and (iii) Client's reasonable cooperation with Provider, at Provider's
expense, in defending against such claim.
8.2. Limited License. Client hereby grants to Provider a perpetual,
royalty-free non-exclusive license to use separate elements of the Software in
development of websites for other clients and to sublicense those elements of
the Software to such clients for the limited purpose of operating such websites;
provided that (i) Provider shall not have the right to use multiple elements of
the Software in developing any website or group of related websites if the
result would be to substantially replicate material aspects of the Software,
(ii) Provider shall not have the right to use elements of the Software to
develop any website or group of related websites that could reasonably be
anticipated to compete with websites utilizing the Software, and (iii) Provider
shall not use any elements of the Software in developing any website without
obtaining Client's prior determination that no such potential for competition
exists.
8.3. Obligations of Employees, Agents and Representatives. Notwithstanding
Section 8 herein, Provider agrees that its employees, and any agents and
subcontractors who are hired or retained by it (provided Client agrees in
writing in advance of such engagement), to perform any work shall have executed
agreements acceptable to Client, whereby they agree to hold in confidence all
Confidential Information to which they have access during their duties as
employees, agents, or subcontractors of Provider and to assign to Client any and
all rights of whatever kind or type (i.e. patent, copyright and trade secret)
they may now have or may acquire arising or resulting from the Work performed
hereunder.
8.4. Third Party Software. Provider represents and warrants to Client that
there are no restrictions or royalty terms applicable to Provider for a license
to use Third Party Software in performing the Work hereunder, developing or
using the Software or the MCA Web Site or in preparing modifications to the
Software or the MCA Web Site to the extent permitted hereunder.
9. Source of Certain Materials.
9.1. MCA Marks and Materials. MCA will provide a copy to Provider of all
its wholly owned Marks and related materials (the "MCA Materials"). "Marks" mean
the domain name, trade and service marks used on or in connection with or
associated with the MCA Web Site, MCA products and services and owned or
licensed by MCA.
10. Provider's Representations and Warranties.
10.1. Authority. Provider represents and warrants that it has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby.
10.2. Execution. This Agreement has been duly and validly executed and
delivered by Provider and constitutes the valid and binding agreement of
Provider, enforceable against Provider in accordance with its terms. Provider
warrants that there is no outstanding contract, commitment, or agreement to
which Provider is a party or any legal impediment of any kind prohibiting,
limiting, restricting or impairing Client's right hereunder.
10.3. Conduct. Provider warrants that it has all rights, titles and
licenses to perform its obligations set forth in this Agreement and that the
services to be performed hereunder will be provided in a professional manner by
qualified personnel and in conformity to the Specifications set forth in this
Agreement and any Statements of Work.
10.4. Conformance. The Final Deliverable accepted by Client will materially
comply with all of the Specifications and any modifications thereto. Provider is
and will be the sole author of any and all Work delivered to Client hereunder,
with the exception of any Third Party Software described in the Statements of
Work as being used in preparing any Work. The Final Deliverable will properly
function from the date of receipt of Final Deliverable for at least one (1) year
thereafter (the "Warranty Period"), with properly configured Web Browsers and
with MailServ, ListServ, GopherServ, FTP Servers, and Telenet.
11. Client's Representations and Warranties. Client represents and warrants
to Provider that:
11.1. Authority. Client represents and warrants that Client has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby.
11.2. Execution. This Agreement has been duly and validly executed and
delivered by Client and constitutes the valid and binding agreement of
Client, enforceable against Client in accordance with its terms.
12. Infringement.
12.1. Indemnity. Provider shall indemnify Client from and against any
liability, cost, loss, or expense arising out of or based on any claim, demand,
or action alleging that the Software or the MCA Web Site as furnished under this
Agreement infringes any third-party rights in copyright or the trade secret in
the United States.
12.2. Remedies. In the event that the Software or the MCA Web Site may be
held to infringe a third-party proprietary right, and that the use of the
Software or MCA Web Site is enjoined, Provider shall, at its sole option and
expense (1) procure for Client the right to continue using the Software or MCA
Web Site or portion thereof; or (2) replace the same with non-infringing
software or equivalent functions and efficiency.
12.3. Survival. The provisions of this Section 12 shall survive the
termination of this Agreement.
13. Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and deemed given and effective upon delivery if
sent by personal delivery or by facsimile transmission or five (5) days after
posting if sent by certified United States mail, return receipt requested, with
postage pre-paid and addressed to address herein or any effective legal address
of the party.
14. Limitations of Liability. EXCEPT FOR SECTIONS 8.1.1 AND 12, IN NO EVENT
SHALL PROVIDER BE LIABLE TO CLIENT FOR LOSS OF PROFITS OR FOR INCIDENTAL,
INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY BREACH OF THIS
AGREEMENT, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES HAS BEEN
COMMUNICATED TO PROVIDER AND REGARDLESS OF WHETHER PROVIDER HAS OR GAINS
KNOWLEDGE OF THE EXISTENCE OF SUCH DAMAGES, PROVIDER SHALL HAVE NO OBLIGATION OR
LIABILITY, AND CLIENT SHALL HOLD PROVIDER HARMLESS OF AND FROM ANY CLAIM BASED
UPON CLIENT'S USE OF THE SOFTWARE.
15. Miscellaneous.
15.1. Assignment. This Agreement may not be assigned by either party to any
other person(s), firm(s), or corporation(s) without the prior express written
approval of the other party, provided however, Client shall be permitted to
assign this Agreement to an affiliate or to a third party in the event of a
merger, acquisition or change in control of Client.
15.2. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute a single agreement.
15.3. Entire Agreement. No representations or statements of any kind made
by either party that are not expressly stated herein or in any written amendment
hereto shall be binding on such party. The parties agree this Agreement, its
Exhibits, and all Statements of Work and written modifications thereto, and
shall constitute the complete and exclusive statement of the agreement between
them, and shall supersede all prior or contemporaneous proposals, oral or
written, and all other communications between them relating to the subject
matter hereof.
15.4. Force Majeure. Neither party shall be liable to the other for any act
of God, delay or failure to perform any of the services set forth in any
Statements of Work or obligations set forth in this Agreement due to causes
beyond its reasonable control. Performance times shall be considered extended
for a period of time equivalent to the time lost because of such delay.
15.5. Governing Law. This Agreement shall be governed by and construed
solely and exclusively in accordance with the laws of the Commonwealth of
Pennsylvania, without reference to its conflicts of law principles. Any and all
disputes between the parties that cannot be settled by mutual agreement shall be
resolved solely and exclusively in the local and federal courts located within
the Commonwealth of Pennsylvania and Client and Provider hereby consent to the
jurisdiction of such courts and irrevocably waives any objections thereto,
including without limitation, on the basis of improper venue or forum non
conveniens.
15.6. Indemnification. Notwithstanding Section 13.1 herein, each party
shall indemnify and hold the other party and its affiliates, officers,
directors, employees, agents and representatives harmless from and against all
damages, losses, costs, expenses, and liabilities arising as a direct result of
its breach of this Agreement including, reasonable attorneys fees and related
expenses.
15.7. No Implied Waiver. No term, provision or clause of this Agreement
shall be deemed waived and no breach excused unless such waiver or consent shall
be in Writing and executed by a duly authorized representative of each party.
Any consent by any party to, or waiver of, a breach by the other, whether
express or implied, shall not constitute a consent to, waiver of, or excuse for
any different or subsequent breach.
15.8. Independent Contractor. Nothing in this Agreement shall be construed
to make the parties partners, joint venturers, representatives or agents of each
other, nor shall either party so represent to any third person. The parties
hereunder are acting in performance of this Agreement as independent contractors
engaged in the operation of their own respective businesses. A party's
employees, agents or representatives are not employees or agents of the other
party and are not entitled to any of the other party's benefits. Neither party
shall be responsible for payment of the other party's workers' compensation,
disability benefits or unemployment insurance, nor shall it be responsible for
withholding or paying employment related taxes for the other party or its
employees.
15.9. Residual Knowledge. Nothing herein shall be construed to prevent or
in any way limit Provider from using general knowledge, skill, and expertise
acquired in the performance of this Agreement in any current or subsequent
endeavors. Client shall have no interest in such endeavors.
15.10. Severability. If any of the provisions of this Agreement is or
becomes illegal, unenforceable, or invalid (in whole or in part for any reason),
the remainder of this Agreement shall remain in full force and effect without
being impaired or invalidated in any way.
15.11. Third-Party Beneficiaries. Nothing in this Agreement is intended to,
or shall create any third-party beneficiaries, whether intended or incidental,
and neither party shall make any representations to the contrary.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement on the date first above written.
INTUICODE, LLC MONEY CENTERS OF
("Provider") AMERICA, INC. ("Client")
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxxxxxx X. Xxxxxxxxxx
------------------------- ----------------------------------
Xxxxxx Xxxxx, Manager Xxxxxxxxxxx X. Xxxxxxxxxx, CEO
EXHIBIT A
Corporate Web Site(s) - Re-design / Maintenance
Description: Updates of xxx.xxxxxxxxxxxx.xxx site pages from time to time.
-------- ------------------------------------------------- ------------------------------------------------------
No. Business Requirement - System Capability Requirement Specification
-------- ------------------------------------------------- ------------------------------------------------------
1 Update Press Releases Update site with new press release when required
-------- ------------------------------------------------- ------------------------------------------------------
2 Update Product Pages Update product pages when new products or
modifications to the company product line
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3 Update Company Information Update company address, phone, locations and other
contact information
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4 Maintain site relevancy Update site for up to date news and reflection of
current business
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5 Admin/reporting Ensure that all reports work in an efficient and
useful manner. Update according to corporate
business rules and requirements.
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Questions, Comments, Concerns
o Other site features may also require updating and will be handled on a
case by case basis.
o Menu changes or design changes will be agreed upon and defined with a
separate scope and requirements document.
Estimated Project Time
o On going process
MCASupport Web Site Re-design
Description: The current MCA support web site (xxx.xxxxxxxxxx.xxx) has had
inconsistence results and is not producing all of the required reports.
Re-design and development of the site is required to utilize the collected data
in a more efficient manner.
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No. Business Requirement - System Capability Requirement Specification
-------- ------------------------------------------------- ------------------------------------------------------
1 Re-design menu system Provide a user friendly, simple to understand GUI
with user security
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2 Re-design reporting database functionality Remove OLAP requirement and reduce size of analysis
database
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3 Re-design reporting pages Use straight forward ASP/HTML web techniques to
allow for easier maintenance and portability
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4 Remove web DLL components requirement Remove as a required component
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Questions, Comments, Concerns
o A requirements document on desired reports should be defined
o Implementation of Postilion will determine design considerations
Estimated Project Time
o On going process
Postilion - Systems Administration
Description: 24/7 support for Postilion "managed systems" re-sales will require
additional system administrators and may impact retainer fee.
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No. Business Requirement - System Capability Requirement Specification
-------- ------------------------------------------------- ------------------------------------------------------
1 Server Administrator Ensure 24/7 uptime without service interruption
-------- ------------------------------------------------- ------------------------------------------------------
2 DBA Ensure reliability, scalability, and database
efficiency
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3 Help Desk 800 number for customer support
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4 Certified Service Engineers Accomplish certification process via Mosaic Software
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Questions, Comments, Concerns
o When first rolled out and utilized for internal purposes, no additional
resources required.
o Becomes a man power resource issue if we are successful on re-selling
the Postilion concept.
o Need to determine policy and procedures for reselling and deployment of
system
o Implementation of Postilion will address current reporting and
redundancy issues
o Re-write of field applications (cashier, kiosk, swipe and go) will be
required in order to implement new TCP/IP protocol within Postilion
o Timeline will be affected once we have entered into an agreement and
can determine the impace on development
Estimated Project Time and Cost
o 4-6 month implementation and certification of base system
o On going process with administration and client support
Engineering Development - Cashier/Teller Financial Services Management System
Description: Development of a Client/Server application to administer the day to
day functions associated with the operations of MCA's Cashier/Teller software.
The current system in use is Cashwise. The system will be developed by
analyzing the features of Cashwise and removing features not necessary for
normal operations from the scope. In addition, the new MCA Cashier system will
be seamlessly integrated with other MCA product lines such as Mobile Hostess,
Swipe `n GO and MCA Kiosk.
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No. Business Requirement - System Capability Requirement Specification
-------- ------------------------------------------------- ------------------------------------------------------
1 Define requirements Define the requirements to build system.
-------- ------------------------------------------------- ------------------------------------------------------
2 Set up proof of concept Setup PC Software implementation of system for proof
of concept.
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3 Testing procedures Define testing procedure for product
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4 Assist in Installations Assist in local installations
-------- ------------------------------------------------- ------------------------------------------------------
5 Installation Scripts Define and develop installation scripts for
different deployment models (Server, Teller Client,
Kiosk Client)
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Questions, Comments, Concerns
o Third party vendor costs may be incurred and billed directly to MCA
from vendor
o New revisions of the device could provide patenting opportunities
o Any traveling costs will be expensed to iGames Entertainment/Money
Centers of America
o Need fee schedules for CreditPlus and Swipe n Go. Combine Swipe N Go
into this phase of development
o TCP/IP Based communication with leased lines/DSL/T1. Certification with
Paymentech, Postilion or other providers via IP servers required
o ACH policy and implementation to be defined
o Source new devices for Pinpad and touch screen
o Integrate/Implement Help Desk system
Estimated Project Time
o 10-12 Months
