EXHIBIT 14.10
MARCH 8, 2004
LETTER OF INTENT
This AGREEMENT executed this 8th day of March 2004, by and between Xxxxxx
Beaumont Inc. (MB) a Florida Corporation whose principal place of business is
0000 Xxxxxxxxx Xx. Xxxxxxxx Xxxxxxx 00000, and Bentley Commerce Corporation.
(BCC) a Corporation whose principal place of business is 00000 Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000.
This Letter of Intent is to set forth the basic business points of Parties
intent to of entering into an agreement to do business together as outlined in
the enclosed proposal "EXHIBIT A".
The Representations that the Parties have made to one another are set forth
below and shall be defined in detail in a forthcoming agreement:
MB:
---
1) Shall provide the products and services as defined in "EXHIBIT A" and
"EXHIBIT B".
2) Represents that it owns technology that is scaleable to develop the
services, programs and products defined in "EXHIBIT A" AND "EXHIBIT B".
3) Represents that it can provide such services as defined in "EXHIBIT A"
within the budget and time frame outlined in "EXHIBIT B".
4) Represents that it will submit in writing to BCC a specific detailed
outline of the work to be performed by MB for approval for each project
within 3 businesses of the signing of this LOI consistent with "EXHIBIT
A" AND "EXHIBIT B".
BCC:
----
1. Shall provide MB with all assistance necessary for integrating current
and future development of programs, projects and product with the BCC
network, affiliates and or customers as defined in "EXHIBIT A" AND
"EXHIBIT B".
2. Acknowledges, understands and agrees that MB shall not be providing
"Live" customer service to support BCC customer inquiries.
3. Represents that they have ability and authority to perform in
accordance to the representations made within this Letter of Intent and
"EXHIBIT A" AND "EXHIBIT B".
THE PARTIES UNDERSTAND AND AGREE THAT:
--------------------------------------
o This Letter of Intent is crafted in an effort to outline the
business points of a more definitive agreement and was created
in an effort to "fast track" the Phase 1 in "EXHIBIT B" launch
for the IVR.
o All MB is licensing the Code to BCC for the private network
and swipe machines defined in "EXHIBIT A"
o MB shall own the network defined in "EXHIBIT A".
1
o That the parties shall conform to all State and Federal regulations for
this promotion.
o The venue and laws governing this agreement shall be within the State
of Florida and in Sarasota County.
IN WITNESS WHEREOF, the Parties hereto have caused this Letter of Intent
to be executed as of the date first written above.
XXXXXX BEAUMONT, INC. BENTLEY COMMERCE CORPORATION
By: By: /S/ Xxxxx Xxxx
----------------------------------- ---------------------------
Xxxxxxxx Xxxxxx, President and CEO Xxxxx Xxxx, CEO
Date: Date: 2/8/2004
--------------------------------- -------------------------
2
"EXHIBIT A"
BENTLEY COMMERCE AND VIRTUAL BARTER PROPOSAL DATED PROPOSAL 2/26/04
Attached
3
"EXHIBIT B"
DELIVERABLES AND PAYMENT SCHEDULES
PHASE 1 -- IVR SERVICE
The IVR service shall provide the following functions to Virtual Barter
members:
1) IVR Service to provide Virtual Barter members telephone access
to check Virtual Barter account balances.
2) IVR transaction authorization to exchange barter currency
between members. The system will verify the account balance of
the purchasing member's account, move the requested currency
amount to the selling member's account, provide an
authorization number so both parties have a tracking number
for the transaction, and generate reports for Virtual Barter
or Bentley. A transaction fees charge will apply to this
transaction as defined in "EXHIBIT A".
A) The term of the IVR service is three (3) years,
renewable annually thereafter.
B) The monthly fee for the Service is $1020, which
provides 6000 minutes of system access to members.
C) Minutes over the plan shall be billed monthly at
$0.20 per minute.
D) There is a one time set-up fee of S 1000 to provision
the service.
E) Bentley Commerce shall provide contact information
for the technical person responsible for working with
Xxxxxx Beaumont to create the "real time" database
connection for the IVR system.
Xxxxxx Beaumont shall have the system available for Bentley
Commerce/Virtual Barter two weeks after execution of the forthcoming
Agreement, and receipt of the Setup fee and first month's service fee
totaling $2020.
PHASE 2 - PRIVATE MAGNETIC SWIPE CARD NETWORK
The Phase 2 roll out of the solution will involve several components
and require a 90 day time frame to complete;
1) POINT OF SALE TERMINALS: The POS terminals will be inventoried
by Xxxxxx Beaumont, and sold directly to the individual
merchants as requested. Each Terminal will be shipped with the
necessary software installed, and will contain complete
instructions on set up and use of the terminal. Xxxxxx
Beaumont will provide live technical support should that be
requested by the merchant.
2) TERMINAL HOST SERVER: The Host server answers calls from the
POS terminals, pushes new software to the terminals for
updates (3750 series only) and contains the logic to route
transaction information to the correct database. The Host
transmits this transaction information to the Network database
so it can be used in the billing and reporting operations.
(Depending on the complexity of the Network, this function may
require more than one server)
3) NETWORK REPORTS AND BILLING SERVER: The Database server
contains all of the information about all transactions, and
compiles this information into the necessary tables to provide
reports and billing functions. (Depending on the complexity of
the Network, this function may require more than one server)
4
4) MAGNETIC SWIPE CARDS: The magnetic cards (including Gift Card)
allow the individual member to conduct barter transactions in
the same manner as is used for traditional transactions.
EXHIBIT B" CONT.
DELIVERABLES AND PAYMENT SCHEDULES
PHASE 2 DEPLOYMENT
------------------
1) POS Terminals - Terminals will be sold directly to the
merchants, so there is no cost or interaction required of
Bentley Commerce/Virtual Barter.
2) Magnetic Swipe Cards - Cards will be printed with the
following:
a. Virtual Barter, or Bentley's name and logo will be on
the front of the card
x. Xxxxxxx Commerce will supply all of the necessary
logos and graphics in a format that permits direct
transmittal to the card printer. The lead time of
printing the cards shall be supplied by the printer
when they have reviewed the logos and graphics
supplied by Bentley Commerce
c. Magnetic cards must be ordered and printed in
increments of 10,000 cards for the initial order, and
2500 cards for subsequent orders. The initial order
of 10,000 cards can be produced and held at the
printer should Virtual Barter desire to have the
barter exchange logo also lithographed on the front
of the card as noted in " EXHIBIT A"
d. The price of the card is $1.00 per card ( shipped
bulk) and $2.00 per card with members name (
individual shipping) as defined in " EXHIBIT A"
e. The front of the card will be printed with the
account number, Virtual Barter/ Bentley's name, logo
of the individual barter exchange, and the individual
member name as long as the minimums are meet.
f. Toll free number for IVR account access
g. Customer Service number designated by Bentley
Commerce (This proposal does not address any "live"
customer service for the Virtual Barter cards. Xxxxxx
Beaumont can provide fee based customer service if
required).
3) Network Servers - Development of the servers (including Host
and Database servers) to accommodate the Bentley Commerce
transactions and reporting functions will require
approximately 90 - 100 days or less completing. Bentley
Commerce shall supply a document outlining the specific
functions and features they require of the Network prior to
any development of the Network.
The NRE fees for Network development shall be made as follows:
1) $20,000 in US Currency
2) $15,000 in US currency and $5,000 in Barter currency
upon delivery of Beta system
3) $15,000 in US currency and $5,000 in Barter currency
upon delivery of finished system
Xxxxxx Beaumont shall provide necessary programmers and resources to
complete the Network in 100 days from execution of the Agreement.
5
EXHIBIT 14.10b
SERVICES VENDOR AGREEMENT
INCORPORATING: NON-DISCLOSURE/NON-COMPETE
NON-CIRCUMVENT & CONFIDENTIALITY CLAUSES
This SERVICES VENDOR AGREEMENT, encompasses the NAN-DISCLOSURE, NON-COMPETE,
NON-CIRCUMVENTION AND CONFIDENTIALITY clauses intended to be enacted via this
AGREEMENT; and the EXHIBITS "A",,"B" AND "C" indicating payments; buy-rates and
schedules thereof, related to all services, products and programs of the BENTLEY
COMMERCE CORPORATION project, and any, and all, associated, related and/or
enhanced product programs developed hereafter, hereinafter to be referred to in
whole as the "AGREEMENT". This Agreement is made effective this date: March 24,
2004 by and between XXXXXX BEAUMONT INC. a Florida Corporation whose principal
place of business is 0000 Xxxxxxxxx Xx Xxxxxxxx Xxxxxxx 00000, hereinafter
referred to as the "SERVICE VENDOR", and BENTLEY COMMERCE CORPORATION a
_____________________ corporation whose principal place of business is 00000
Xxxxxxx Xxxx. Xxxxx 000 Xxx Xxxxxxx, XX 00000 hereinafter referred to as the
"COMPANY", and all parties herein mutually agree as follows:
1. DEFINITIONS
--------------
(a) ACCESSIBLE shall mean being freely accessed for use at any time;
(b) BARTER CURRENCY shall mean a means of exchange and conducting business
for goods and services that is not Government authorized or used
currency;
(c) CASH CURRENCY shall mean government issued currency;
(d) BARTER NETWORK shall mean a private network as defined in the Exhibits
to conduct Barter Currency transactions;
(e) DEBIT OR ATM NETWORK shall mean a Cirrus, Maestro, Star, Pulse,
MasterCard, Visa, Interlink network for conducting cash transactions
on;
(f) BARTER CARD shall mean a plastic or laminate card with a magnetic strip
for holding information embossed with identifying account numbers to be
used on a Barter Network using Barter Currency for transactions;
(g) DEBIT OR ATM CARD shall mean A plastic or laminate card with a magnetic
strip for holding information embossed with identifying account numbers
to be used to conduct cash currency transaction;
(h) ADEQUATE NETWORK shall mean switches, bandwidth, provisioning of
resources, contracts of service and availability of resources to
support all Batter cards that have been sold, active and able to be
used,
(i) IVR MINUTES shall mean the length of time of a call with minutes used
for each individual connected call made to the IVR for anything but a
IVR Barter Currency Transaction:
(j) IVR BARTER TRANSACTION AUTHORIZATION shall mean a authorization of a
purchase or sale of a product or service is conducted on Service
Vendors IVR with Customers Barter Network:
(k) BARTER TRANSACTION Fee shall mean POS or IVR Barter Currency
transactions which fees are to be paid
(l) TRANSACTION Fee shall mean POS, WP, Computer or Internet Cash Currency
Transaction, including loading of cash on a Debit or ATM Card which A
fee is to be paid.
(m) CUSTOMER SERVICE shall mean people and resources available to consumer
to address questions;
(n) DOMESTIC shall mean within the 48 contiguous States;
1
(o) PRODUCT SUMMARY shall mean a compete outline of the feature, benefits,
usage, Terms, Conditions and fees related to the product;
(p) PROGRAM shall mean any program defined in EXHIBIT "A" AND ATTACHMENTS
TO EXHIBIT "A" of this Agreement as the signed Letter of Intent and
attached schedules or exhibits to this Letter of Intent between Company
and Services Vendor,
(q) WRITTEN APPROVAL shall mean documents submitted to parties in writing
requiring a signature ;
2. DECLARATION OF INTENT
------------------------
(a) The COMPANY seeks to establish a working relationship with the SERVICES
VENDOR in all respects as determined herein, and hereafter, regarding the
opportunity as noted, and the SERVICES VENDOR seeks in turn likewise to develop
such a working relationship.
(b) The COMPANY seeks to acquire said services, products and programs of the
SERVICES VENDOR, and/or additionally, and/or alternatively, services, products
and programs of the SERVICES VENDOR'S third party vendors, via the SERVICES
VENDOR'S contracts thereof secured for said purposes. Attached hereunder via the
EXHIBIT "A" AND ATTACHMENTS are the products, services, schedules indicating
payments and buy-rates thereof.
MARKETING MATERIALS. Company shall be solely responsible for developing, at its
own expense, all of the marketing and advertising materials to advertise, market
and promote the Product; provided, however, that Company shall not engage in any
solicitation of the Product until the proposed materials have been reviewed by
Company's legal counsel and the Services Vendor has provided its written
approval of all such materials.
3. OBLIGATIONS COMPANY AND SERVICES VENDOR
------------------------------------------
Shall be part of this Agreement as defined in EXHIBIT "A" Letter of Intent and
attachments to same
4. CONFIDENTIAL INFORMATION.
----------------------------
DEFINITION. For purposes of this Section 4, the term "Confidential Information"
means all information concerning a party (the "Disclosing Party") that is
provided to, or otherwise obtained by, one of the other parties (the "Receiving
Party") that may not he accessible or known to the general public, whether or
not specifically designated as "confidential" or "proprietary." Confidential
information shall include, without limitation, all non-public and proprietary
information pertaining to the past, present or potential business, operations,
financial information, affairs, properties, personnel, products, suppliers,
rights, and consumers of the Disclosing Party and any other information not
generally known that may be of value.
EXCEPTIONS. Notwithstanding the above paragraph, Confidential Information does
not include information that is (i) or becomes generally available to the public
without violation of this Agreement or any other obligation of confidentiality
(including, but not limited to, the posting of information on any Internet
website intended for access by a third party), (ii) already known by the
Receiving Party and not subject to an obligation of confidentiality, (iii)
independently developed by the Receiving Party without reference to the
Confidential Information, and/or (iv) disclosed without restriction to the
Receiving Party by a third party rightfully in possession of such Confidential
Information where the disclosure by the third party does not violate any
obligation of confidentiality.
PROTECTION, USE AND DISCLOSURE. The Receiving Party shall cause its employees,
agents and every other person and entity that it permits to have access to the
Disclosing Party's Confidential Information to protect the Disclosing Party's
Confidential Information by using the same degree of care, but no less than a
reasonable degree of care, to prevent the unauthorized use or disclosure of the
Disclosing Party's Confidential Information as the Receiving Party uses to
protect its own confidential information of like nature. Except as otherwise
permitted herein, without the prior, express, and written consent of the
Disclosing Party, the Receiving Party shall never disclose or use any
Confidential Information of the
2
Disclosing Party in any manner other than by disclosing such Confidential
Information to employees of the Receiving Party who have a need to know such
Confidential Information to perform services contemplated by this Agreement,
provided that they have been informed of the confidential nature of such
information. Furthermore, the Receiving Party shall promptly advise the
Disclosing Party if the Receiving Party learns of any unauthorized use or
disclosure of any Confidential Information of the
DISCLOSING PARTY COURT ORDER. The Receiving Party may disclose Confidential
Information pursuant to court order, subpoena or similar legal process. The
Receiving Party, however, to the extent not prohibited by law, must give written
notice of any such order to the Disclosing Party at least fifteen (15) days
prior to the date of compliance with it (unless the Receiving Party has less
than fifteen (15) days notice itself; in which case the Receiving Party shall
give the disclosing party as much notice as is practicable under the
circumstances). In all cases, the Receiving Party agrees to take such steps as
the Disclosing Party may direct to further protect Confidential Information from
disclosure, provided, however, that the Receiving Parry shall not be required to
incur any additional expense to do so.
OWNERSHIP. The Disclosing Party shall continue to own all of its Confidential
Information disclosed pursuant to this Agreement; and, except as otherwise
expressly provided, nothing in this Agreement shall be deemed to grant the
Receiving PARTY any right to license, sublicense, or otherwise exploit such
Confidential Information, except pursuant to a written Agreement executed by
both parties. RETURN OF CONFIDENTIAL INFORMATION. The Receiving Party shall
promptly return to the Disclosing Party, at the Disclosing Party's sole cost and
expense, all Confidential Information: of the Disclosing Party UPON written
request by the Disclosing Party.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTIES.
------------------------------------------------------------
Each Party warrants and represents to the other that it has the authority to
enter into this Agreement. Furthermore, each Party warrants and represents that
any material provided to the other Party will not infringe on any third parties
copyright, patent, trademark; trade secret, or other proprietary rights of
publicity or privacy. Each Party warrants and represents that any material
provided to the other Party does not violate any applicable laws, statute,
ordinance or regulation. Neither Party makes any representations nor warranties
to the other Party not contained in this Agreement, including, but not limited
to, any implied warranties of merchantability or fitness for a particular
purpose.
6. INDEMNIFICATION.
-------------------
INDEMNIFICATION BY COMPANY. Company agrees to indemnify and defend Service
Vendor and its directors, officers, employees and agents, and hold there
harmless from and against any and all actual or threatened claims, losses,
proceedings, actions, liabilities, judgments, awards or costs (including
reasonable attorneys fees and expenses)(collectively, "Losses') arising out of
or related to (i) the breach by of any of its representations or warranties
contained in this Agreement; (ii) the failure by Company TO frilly perform any
of its obligations hereunder, or (iii) the failure by Company to comply with any
applicable laws, rules or regulation in connection with the performance of its
obligations hereunder.
INDEMNIFICATION BY SERVICES VENDOR. Services Vendor agrees to indemnify and
defend Company and their respective directors, officers, employees and agents,
and hold them harmless from and against any and all Losses arising out of or
related to (i) the breach by Services Vendor of any of its representations or
warranties contained in this Agreement; (iii) the failure by Services Vendor to
fully perform any of its obligations hereunder, (iii) the failure by Services
Vendor to comply with any applicable laws, rules or regulation in connection
with the performance of its obligations hereunder, or (iv) the use or quality of
any service provided to any person.
INDEMNIFICATION PROCEDURE. In the event that any claim is made or asserted
against a party entitled to indemnification under this Agreement (the
"Indemnified Party"), the Indemnified Party shall with reasonable promptness
notify the other Party with an indemnification obligation (the 71ndemnifying
Party") of such claim (the "Claim Notice"), specifying the nature of such claim
and the amount or the
3
estimated amount thereof to the extent then feasible (which estimate shall not
be conclusive of the final amount of such claim). The Indemnifying Party shall
have 30 days from the receipt of the Claim Notice (the "Notice Period") to
notify the Indemnified Party (i) whether or not the Indemnifying Party disputes
liability to the Indemnified Party hereunder with respect to such claim and (ii)
if the Indemnifying Party does not dispute such liability, whether or not the
Indemnifying Party desires, at the sole cost and expense of the Indemnifying
Party, to defend against such claim, provided that the Indemnified Party is
hereby authorized (but not obligated) prior to and during the Notice Period to
file any motion, answer or other pleading and to take any other action that the
Indemnified Party shall deem necessary or appropriate to protect the Indemnified
Party's interests. In the event that the Indemnifying Party notifies the
Indemnified Party within the Notice Period that the Indemnifying Party does not
dispute the Indemnifying Party's obligation to indemnify hereunder and desires
to defend against such claim, except as hereinafter provided, the Indemnifying
Party shall have the right to defend by appropriate proceedings, which
proceedings shall be promptly settled or prosecuted by the Indemnifying Party to
a final conclusion; provided that, unless the Indemnified Party otherwise agrees
in writing, the Indemnifying Party may not settle any matter (in whole or in
part) unless such settlement includes a complete and unconditional release of
the Indemnified Party. If the Indemnified Party desires to participate in, but
not control, any such defense or settlement the Indemnified Party may do so at
its sole cost and expense. If the Indemnifying Party elects not to defend the
Indemnified Party against such Claim, whether by not giving the Indemnified
Party timely notice as provided above or otherwise, then, without waiving any
rights against the Indemnifying Party, the Indemnified Party may settle or
defend against any such claim or demand in the Indemnified Party's sole
discretion and, if it is ultimately determined that the Indemnifying Party is
responsible therefore under this Section 5, then the Indemnified Party shall be
entitled to recover from the Indemnifying Party the amount of any settlement or
judgment and all indemnifiable costs and expenses of the Indemnified Party with
respect thereto, including, without limitation, interest from the date such
costs and expenses were incurred.
7. FORCE MAIENRE
----------------
Neither Party shall be liable to the other by reason of failure or delay in the
performance of its obligations herein on account of Acts of God, fires, storms,
war, terrorist attacks, governmental action, labor conditions, earthquakes,
natural disasters, interruption in internet service or any other cause which is
beyond the reasonable control of such Party. In the event of such disability,
the disabled party will immediately notify the other of the disabling event and
will take every reasonable effort to overcome the disability and resume
performance under this Agreement as soon as practicable.
8. TERM
-------
For the purposes of this Agreement, there shall be an initial term of 2 years
from the signing of this agreement. Should the Company AND Services Vendor
mutually agree to an extension of this Agreement beyond the initial 2 year term
day, the Agreement shall be renewed for a 2 year period.
(a) This Agreement shall benefit and be binding upon the parties hereto and
their respective successors and assigns. As defined in Definitions of this
Agreement the obligations of the Services Vendor and Customer herein noted shall
be effective immediately from the date of execution of this Agreement.
(b) The obligations noted herein shall not be affected by bankruptcy,
receivership, assignment, attachment or seizure procedures, whether initiated by
or against the Services Vendor, nor by the rejection of any Agreement between
the Company and the Services Vendor, by a trustee of the Services Vendor in
bankruptcy, or by the Services Vendor as a debtor-in-possession or the
equivalent of any of the foregoing under local, state, federal or even
International law.
(c) If, in the future, the parties elect to enter into additional binding:
commitments, such commitments will be explicitly stated in separate written
Agreements, executed by both parties, and the parties hereby affirm that they do
not intend their discussions, correspondence, and other activities to he
construed as forming any Contract regarding the subject of the discussions, or
any other transaction between them, without execution of such a separate written
Agreement.
4
9. OTHER INFORMATION
--------------------
THE SERVICES VENDOR AND COMPANY shall have no obligation under this Agreement
with respect to Confidential information which is, or becomes publicly available
without breach of this Agreement, is rightfully received without obligations of
Confidentiality; or is developed without breach of this Agreement; provided
however, such Confidential Information shall not be disclosed until after
written notice of intent to disclose is given to the COMPANY OR SERVICE VENDOR,
along with the asserted and legally justified grounds for disclosure, and the
COMPANY has had the appropriate time allowed by law to review said Confidential
Information, and has been afforded the necessary time allowable by law to
protect any such Confidential information that it deems necessary, to protect
the SERVICE VENDOR AND COMPANY'S interests, and as needed the COMPANY'S AND
SERVICE VENDORS third party vendors interests, if necessary, including
injunctive relief as may be necessary, as is allowed by law.
10. NO LICENSE
--------------
Nothing contained herein shall be construed as granting or conferring any rights
by license or otherwise in any Confidential Information. It is understood and
agreed that neither party seeks to solicit any change in the organization,
business practice, service or products, if any, of the other party's Company, if
any, unless otherwise noted herein, and that the disclosure of Confidential
Information shall not be construed as evidencing any intent by a party to
purchase any products or services of the other party, nor as an encouragement to
expend finds in development or research efforts thereof, unless otherwise noted
herein. Confidential Information may pertain to prospective or unannounced
products.
11. NO PUBLICITY
----------------
The SERVICES VENDOR and COMPANY agrees not to disclose in any manner, the Terms
and Conditions of the Agreement Yet, the parties will permit each other to
identify themselves as having an Agreement with each other (as long as the
Agreement Terms and Conditions are not disclosed) for the business purposes of
sales, marketing and promotion in relation to the parties activities on behalf
of the each other, and also to enable the parties to market and promote the
COMPANY AND SERVICE VENDOR in the normal course of their expected sales and
business operations activities providing all written disclosure or Press
releases shall receive prior written approval of the parties as to content and
placement.
12. GOVERNING LAW AND EQUITABLE RELIEF
--------------------------------------
a) This Agreement shall be governed and construed in accordance with the laws of
the United States and the State of Florida. The COMPANY consents to the
exclusive jurisdiction of the state courts of Florida, and U.S. federal courts
located therein, for any dispute arising out of this Agreement, and said
authority(s) shall govern the interpretation and enforcement of this Agreement.
(b) Both parties acknowledge that any breach of contract will result in the
immediate termination of this Agreement; regardless of any potential for
financial penalties to the SERVICES VENDOR AND OR COMPANY, that no payments will
be made thereafter to the SERVICES VENDOR AND OR COMPANY for all activity in
connection to this Agreement, until the breach is cured and settlement
thereafter is resolved, and mutually agreed upon, if any.
(c) The patties agree that they will endeavor to settle any dispute, controversy
or claim arising out of or relating to this Agreement amicably between them
first, through: direct discussions Any dispute arising from any disagreement
between the parties, that cannot first be amicably settled between the parties
herein noted, shall first be submitted to arbitration, per the rules and
procedures of the American Arbitration Association, and any said arbitration
administered by the AAA in accordance with its rules, and judgment on the award
5
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof The requirement of filing a notice of claim with respect to the dispute,
controversy or claim submitted to mediation shall be suspended until the
conclusion of the mediation process. A current copy of the rules and procedures
for AAA may be found on the Internet
(d) Nothing hereinabove to the contrary, this provision shall not be construed
to effect a waiver by, or the loss to, either party of its rights and remedies
pursuant to relevant state or federal law, specifically including, without
limitation, its right to seek redress for any claimed grievance through the
courts, as contemplated within the terms of this Agreement.
13. FINAL AGREEMENT
-------------------
This Agreement confutes the entire understanding between the parties with
respect to the Information provided herein. No amendment or modification of this
Agreement shall he valid or binding on the parties, unless mutually agreed to
and executed in writing, by the parties. This Agreement incorporates, and/or
terminates and supersedes all prior understandings or Agreements on the subject
matter hereof,
14. NO ASSESSMENT
-----------------
The SERVICES VENDOR AND COMPANY may not assign this Agreement, or any interest
herein, without both parties express written consent
15. SEVERABILITY
----------------
If any Term or Condition of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, then this Agreement; including all
of the remaining Terms and Conditions, shall survive and will remain in full
force and in effect as if such invalid or unenforceable Term or Condition had
never been included. Thus any invalid portion thereof shall be corrected,
adjusted, or otherwise replaced.
16. NOTICES
-----------
Any notice required by this Agreement or given in connection with it, shall be
in writing, and shall be given to the appropriate party by personal delivery, or
by certified mail, or recognized overnight delivery services.
IF TO: XXXXXX BEAUMONT INC 0000 XXXXXXXXX XXXXX
XXXXX 000
XXXXXXXX, XXXXXXX 00000
ATTENTION; XX. XXXXXXXX XXXXXX, CEO
IF TO: BENTLEY COMMERCE CORPORATION 00000 XXXXXXX XXXX.
XXXXX 000
XXX XXXXXXX, XX 00000
ATTENTION: XX. XXXXX XXXX, CEO
6
17. NO IMPLIED WAIVER
---------------------
Either party's failure to insist on any one or more instances upon strict
performance by the other party, of any of the Terms and Conditions of this
Agreement, shall not be construed as a waiver of any continuing or subsequent
failure to perform, or delay in performance, of any Term or Condition hereof
18. HEADINGS
------------
Headings used in this Agreement are provided for convenience only, and shall not
be used to construe meaning or intent.
19. MUTUAL INTENT
-----------------
The responsibilities, meaning and intent of this Agreement throughout and in
whole, constitute a "MUTUAL INTENT", therefore, all responsibilities of either
party to the other, are lice, similar and same to the other party, and the other
party's interests are as like, similar and stone in the context of this
Agreement, in all respects.
20. CLOSING COMMITMENT
----------------------
(a) The COMPANY determines that it intends to pursue this "SERVICES VENDOR"
Agreement as has been described throughout herein, as a Contract to provide
Company with services, products and programs provided by the SERVICES VENDOR, as
intended, as an independent entity. Furthermore, at no time during the
performance of this Agreement, does the SERVICES VENDOR intend, nor will the
SERVICES VENDOR attempt, to circumvent the Company's custom products or
programs, its working relationships, business relationships, vendor and/or
contractual Agreements (contracts), customer and/or member relationships
(Agreements and/or contracts), suppliers, distributors or resellers Agreements
(contracts) or relationships, as has been determined herein, and/or shall be
determined hereafter, ongoing, and as will be determined herein and hereafter by
the efforts of all parties mutually committed herein, in any manner. Including
any attempt hereafter to access said working and business relationships,
Agreements and contracts for such purposes as to directly or indirectly
circumvent the Company for profit or for any intended gain.
(b) All third party vendors, contractors, suppliers, distributors, resellers,
clients, customers, agents and/or members, and any related relationships and
contracts of or with the COMPANY and SERVICES VENDOR shall remain Confidential
and shall not be disclosed to any third party without the expressed written
permission of the COMPANY AND SERVICES VENDOR. Any Breach of this
Confidentiality shall cause the COMPANY AND SERVICES VENDOR to incur substantial
losses of Asset Value, income and credibility (measurable "GOOD WILL"). That any
violation of these Terms and Conditions, is a breach of contract, and liable
under all provisions of law in relation to said violation, as may be allowed by
law. And, the Company shall seek that any third party Agreements of the SERVICES
VENDOR likewise include a similar clause committing to the same that no
circumvention of its market, clients, customers, related relationships and
contracts, or product program(s) shall occur, likewise.
7
Agreed to this March__________, 2004
XXXXXX BEALTMONT, INC.
------------------------------------
Xxxxxxxx Xxxxxx, CEO
Agreed to this March__________, 2004
BENTLEY COMMERCE CORPORATION
------------------------------------
Xxxxx Xxxx, CEO
8
EXHIBIT A AND ATTACHMENTS TO EXHIBIT A
MARCH 8, 2004
LETTER OF INTENT
This AGREEMENT executed this 8th day of March 2004, by and between Xxxxxx
Beaumont Inc. (MB) a Florida Corporation whose principal place of business is
0000 Xxxxxxxxx Xx. Xxxxxxxx Xxxxxxx 00000, and Bentley Commerce Corporation.
(BCC) a Corporation whose principal place of business is 00000 Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000.
This Letter of Intent is to set forth the basic business points of Parties
intent to of entering into an agreement to do business together as outlined in
the enclosed proposal "EXHIBIT A".
The Representations that the Parties have made to one another are set forth
below and shall be defined in detail in a forthcoming agreement:
MB:
---
1) Shall provide the products and services as defined in "EXHIBIT A" and
"EXHIBIT B".
2) Represents that it owns technology that is scaleable to develop the
services, programs and products defined in "EXHIBIT A" AND "EXHIBIT B".
3) Represents that it can provide such services as defined in "EXHIBIT A"
within the budget and time frame outlined in "EXHIBIT B".
4) Represents that it will submit in writing to BCC a specific detailed
outline of the work to be performed by MB for approval for each project
within 3 businesses of the signing of this LOI consistent with "EXHIBIT
A" AND "EXHIBIT B".
BCC:
----
1. Shall provide MB with all assistance necessary for integrating current
and future development of programs, projects and product with the BCC
network, affiliates and or customers as defined in "EXHIBIT A" AND
"EXHIBIT B".
2. Acknowledges, understands and agrees that MB shall not be providing
"Live" customer service to support BCC customer inquiries.
3. Represents that they have ability and authority to perform in
accordance to the representations made within this Letter of Intent and
"EXHIBIT A" AND "EXHIBIT B".
o The parties understand and agree that:
o This Letter of Intent is crafted in an effort to outline the
business points of a more definitive agreement and was created
in an effort to "fast track" the Phase 1 in "EXHIBIT B" launch
for the IVR.
o All MB is licensing the Code to BCC for the private network
and swipe machines defined in "EXHIBIT A"
o MB shall own the network defined in "EXHIBIT A".
9
o That the parties shall conform to all State and Federal
regulations for this promotion.
o The venue and laws governing this agreement shall be within
the State of Florida and in Sarasota County.
IN WITNESS WHEREOF, the Parties hereto have caused this Letter of Intent
to be executed as of the date first written above.
XXXXXX BEAUMONT, INC. BENTLEY COMMERCE CORPORATION
By: By: /S/ Xxxxx Xxxx
----------------------------------- ---------------------------
Xxxxxxxx Xxxxxx, President and CEO Xxxxx Xxxx, CEO
Date: Date: 2/8/2004
--------------------------------- -------------------------
10
"EXHIBIT A" ATTACHMENT TO EXHIBIT A
PRIVATE FINANCIAL NETWORK
INFRASTRUCTURE DEVELOPMENT AND DEPLOYMENT
FOR
BENTLEY'S XXXXX BARTER EXCHANGE
--------------------------------------------------------------------------------
PREPARED BY:
------------
Xxxxxx Beaumont Inc. 0000
Xxxxxxxxx Xx. Xxx 000
Xxxxxxxxx, XX 00000
11
"EXHIBIT A" ATTACHMENT TO EXHIBIT A
-----------------------------------
CONCEPT INTRODUCTION
--------------------
The growth of the barter or private monetary method of paying for goods
and services has been hampered by the inability to easily exchange
values between parties of interest. Bentley's Xxxxx Barter Exchange has
taken the first steps by establishing a common currency and assembling
Local Exchanges to lay the foundation for the first International
Exchange. Xxxxxx Beaumont offers a solution eliminating restrictions,
and allows barter members to conduct transactions as easily as spending
local currencies.
The Xxxxxx Beaumont solution provides a complete private network,
seamlessly integrating each component to provide the financial
transaction system which provides the International Exchange a secure
method of transferring currency between members with "real time"
tracking and information flow. Members will enjoy the ability to have
information relating to their accounts and consummate transactions
twenty-four hours a day with "real time" reporting regardless of the
location or type of transaction.
For typical merchants, the POS terminals offer the convenience of
simply swiping a Bentley Commerce branded magnetic card through the
terminal just as individuals use credit cards today. This will debit
and credit appropriate balances from each member's account on a "real
time" basis assuring each member's account balance is correctly stated.
In the case of individuals or businesses that do not have access to a
permanently installed phone line, the telephony access system allows
them to perform the same transaction verification using any telephone
that has the ability to transmit touch-tone information. Once again,
this is a "real time" transaction so member balances are accurately
represented at all times.
Xxxxxx Beaumont recognizes the value of the sale of goods and services
using non-traditional financial instruments. The opportunity to partner
with a large, well established leader in the private monetary exchange
arena is a welcome addition to our technology services.
We will propose a combination of US currency and VirtualBarter currency
to Bentley Commerce in the deployment of this private network, as a
means of allowing Xxxxxx Beaumont to initiate a business model that
encourages the use of the VirtualBarter network to conduct business
with VirtualBarter members.
12
"EXHIBIT A" ATTACHMENT TO EXHIBIT A
-----------------------------------
SOLUTION PROVIDER OVERVIEW
--------------------------
XXXXXX BEAUMONT INC.
--------------------
Xxxxxx Beaumont, a Florida Corporation formed in 2000, is
recognized as an industry leader of financial products to the
sub prime and alternative finance markets. Xxxxxx Beaumont
offers a variety of card products including Stored Value
MasterCard cards,
payroll cards, private label debit cards, pre-paid,
re-loadable phone cards, as well as value added services for
these card programs such as discounted health care benefits.
The extensive experience and leadership shown by Xxxxxx
Beaumont enables them to offer superior service to the
companies that partner with Xxxxxx to issue cards, as well as
to the consumers that use them.
Xxxxxx solidified their leadership position in 2003 with the acquisition of
Typhoon Voice Technologies, allowing them to offer advanced technology products
to support all of the cards programs marketed by Xxxxxx Beaumont and their
business partners.
TYPHOON VOICE TECHNOLOGIES
--------------------------
Typhoon Voice Technologies' customer service technology
products represent `Best of Breed" solutions in the management
and access of data. Typhoon Voice offer's tightly integrated
solutions that meet the exacting needs of the financial
services industry, specializing in Speech Recognition IVR
systems, Customer Relationship Management software, and fully
integrated Point of Sale terminals.
Private Monetary Card Overview
To the individual member, carrying a VirtualBarter branded magnetic
card will represent a quantum leap forward in their ability to purchase
and sell products throughout the barter network of members.
To facilitate the ease of use of the VirtualBarter monetary system,
Xxxxxx Beaumont will supply each member with a plastic, magnetic strip
card that is branded with the VirtualBarter "look and feel" for ease of
member recognition. The card is swiped through the POS terminal running
the proprietary Typhoon Voice Software, and the appropriate accounting
takes place in a manner that precisely emulates a traditional credit
card transaction. The ease of use encourages members to use the
network, and offers substantial value when recruiting new members to
the VirtualBarter network.
13
"EXHIBIT A" ATTACHMENT TO EXHIBIT A
These cards can be supplied with graphics and branding as specified by
VirtualBarter, (subject to certain restrictions), generating market recognition
of the VirtualBarter network
though member usage. Each card will have a unique member number, and can also
include the member's name if desired.
Technology Overview
There are three distinct components that comprise the private network solution
proposed for Bentley Commerce.
1. Point of Sale Terminals with proprietary software to process the
private monetary transactions for VirtualBarter members
2. Application Server to accept and distribute communications from the
POS terminals to the VirtualBarter database so each member's account is
properly credited/debited. This also provides transaction tracking to
facilitate system reports and audits 3. IVR Server to provide telephone
access for transaction verification
Each of these components will be configured to the specifications of Bentley's
private monetary network to ensure complete privacy, accuracy of transaction
processing as well as the ability to monitor processing functions and reporting
capabilities.
Below is a graphic that shows how each of the individual pieces is used to offer
a complete solution.
14
"EXHIBIT A" ATTACHMENT TO EXHIBIT A
Proposal
Xxxxxx Beaumont proposes to provide a turn key private monetary transaction
processing network, using the proprietary software developed by Typhoon Voice
Technologies to allow VirtualBarter members to purchase products and services
using their VirtualBarter accounts. Authorization for all purchases will be
obtained by using either a Xxxxxx Beaumont issued magnetic swipe card, or by
using the IVR system.
Xxxxxx Beaumont will license the network software for use by Bentley Commerce,
and the POS software for use by VirtualBarter members, but will retain all
ownership and copyrights associated with all of the software used by
VirtualBarter in the deployment of the private network.
NETWORK DEVELOPMENT
-------------------
The Typhoon Voice Professional Services Group will customize the
proprietary software to meet the specifications provided by Virtual
Barter. These Professional Service activities will incur a one-time
development fee of $157,500. The customization process includes the POS
terminals and the Application Server and all necessary database
configurations to communicate with the VirtualBarter database for
accurate transaction processing. Typhoon Voice Technologies will
require access to the appropriate technical personnel with information
regarding the API's and access to the VirtualBarter database so the
transaction information can be updated in a "real time" basis.
VIRTUALBARTER MAGNETIC SWIPE CARDS
----------------------------------
Xxxxxx Beaumont will supply magnetic swipe cards to VirtualBarter members at a
cost of $3.50 per card. Since these cards require specific program numbering
schematics for record keeping functions, a minimum of 10,000 cards must be
ordered at one time. Orders subsequent to the initial lot of 10,000 can be
placed in 5,000 card increments. Lead time for stock graphics and member account
number only is 5 weeks. If non-stock graphics or member names are required, the
lead time and minimum order numbers may vary. Please contact Xxxxxx Beaumont for
details if this is a requirement for the member cards.
15
"EXHIBIT A" ATTACHMENT TO EXHIBIT A
POINT OF SALE TERMINALS
VirtualBarter members can purchase Verifone 3750 Point of Sale terminals, with
the proprietary software pre-installed, for $550 per terminal. Additional
software can be purchased (at an additional cost) and installed from our remote
download server on these terminals to allow processing of Visa, MasterCard,
American Express, or other credit card transactions. (Processing of the
VirtualBarter and credit card transactions is exclusive to each other).
IVR TRANSACTION AUTHORIZATION SERVICE
-------------------------------------
This portion of the proposal has been addressed in a separate document.
SOFTWARE LICENSING
An annual software license fee for use of the processing server and POS
terminal software is required.
PROCESSING SERVER
$15,000, payable on the service anniversary date each year.
POS TERMINAL
$50 per terminal license fee, payable on the anniversary date of receiving the
terminal each year. The first year license is included in the purchase price of
the terminal
Terms and Conditions
Network
Payment of the Professional Service fees for the network infrastructure
customization and first year Software License Fee of $172,500 to be
made in the following manner:
$37,500 US Currency; $20,000 Barter Currency - Upon execution of the
Agreement
$35,000 US Currency; $20,000 Barter Currency - Upon delivery of Beta
system
16
"EXHIBIT A" ATTACMENT TO EXHIBIT A
$50,000 US Currency (includes Software License Fee); $10,000 Barter
Currency Upon delivery of the finished system
MAGNETIC CARDS
--------------
10,000 card initial order, 5,000 card subsequent orders at a cost of
$3.50 per card.
POINT OF SALE TERMINALS
POS Terminals can be purchased by individual retail locations, at any
time, in any number required by the individual business. Unless Bentley
Commerce wishes to warehouse the terminals, it will be the
responsibility of each member to contact Xxxxxx Beaumont to place an
order for the terminal.
Each terminal transaction will result in a $0.50 POS fee, to be paid
$0.25 in US Currency and $0.25 in Barter Currency. VirtualBarter will
be invoiced each month based on the previous months activity for these
POS transaction fees.
Executive Summary
By deploying a private network for the exchange of Barter Currency between
different groups, exchanges, and geographical boundaries, Bentley Commerce has
an opportunity to establish itself as the undisputed leader in facilitating the
expansion of the barter concept. This will provide enormous value to Bentley
Commerce shareholders, and allow them to see ever increasing share prices as new
markets are opened using the private network.
Xxxxxx Beaumont, with the unique combination of card products and technology
services is the perfect partner to provide the background infrastructure of this
new and exciting era in barter commerce.
By working together, and conducting our own transactions using both Barter
Currency, and US Currency we can prove the value of the idea, and drive new
products and services into the barter industry. We look forward to working with
Bentley Commerce to bring about this revolution.
17
"EXHIBIT A" ATTACMENT TO EXHIBIT A
DELIVERABLES AND PAYMENT SCHEDULES
PHASE 1 -- IVR SERVICE
The IVR service shall provide the following functions to Virtual Barter
members:
1) IVR Service to provide Virtual Barter members telephone access
to check Virtual Barter account balances.
2) IVR transaction authorization to exchange barter currency
between members. The system will verify the account balance of
the purchasing member's account, move the requested currency
amount to the selling member's account, provide an
authorization number so both parties have a tracking number
for the transaction, and generate reports for Virtual Barter
or Bentley. A transaction fees charge will apply to this
transaction as defined in "EXHIBIT A".
A) The term of the IVR service is three (3) years,
renewable annually thereafter.
B) The monthly fee for the Service is $1020, which
provides 6000 minutes of system access to members.
C) Minutes over the plan shall be billed monthly at
$0.20 per minute.
D) There is a one time set-up fee of S 1000 to provision
the service.
E) Bentley Commerce shall provide contact information
for the technical person responsible for working with
Xxxxxx Beaumont to create the "real time" database
connection for the IVR system.
Xxxxxx Beaumont shall have the system available for Bentley
Commerce/Virtual Barter two weeks after execution of the forthcoming
Agreement, and receipt of the Setup fee and first month's service fee
totaling $2020.
PHASE 2 -- PRIVATE MAGNETIC SWIPE CARD NETWORK
The Phase 2 roll out of the solution will involve several components
and require a 90 day time frame to complete;
1) POINT OF SALE TERMINALS: The POS terminals will be inventoried
by Xxxxxx Beaumont, and sold directly to the individual
merchants as requested. Each Terminal will be shipped with the
necessary software installed, and will contain complete
instructions on set up and use of the terminal. Xxxxxx
Beaumont will provide live technical support should that be
requested by the merchant.
2) TERMINAL HOST SERVER: The Host server answers calls from the
POS terminals, pushes new software to the terminals for
updates (3750 series only) and contains the logic to route
transaction information to the correct database. The Host
transmits this transaction information to the Network database
so it can be used in the billing and reporting operations.
(Depending on the complexity of the Network, this function may
require more than one server)
3) NETWORK REPORTS AND BILLING SERVER: The Database server
contains all of the information about all transactions, and
compiles this information into the necessary tables to provide
reports and billing functions. (Depending on the complexity of
the Network, this function may require more than one server)
4) MAGNETIC SWIPE CARDS: The magnetic cards (including Gift Card)
allow the individual member to conduct barter transactions in
the same manner as is used for traditional transactions.
18
"EXHIBIT A" ATTACMENT TO EXHIBIT A
DELIVERABLES AND PAYMENT SCHEDULES
PHASE 2 DEPLOYMENT
------------------
1) POS Terminals - Terminals will be sold directly to the
merchants, so there is no cost or interaction required of
Bentley Commerce/Virtual Barter.
2) Magnetic Swipe Cards - Cards will be printed with the
following:
a. Virtual Barter, or Bentley's name and logo will be on
the front of the card
x. Xxxxxxx Commerce will supply all of the necessary
logos and graphics in a format that permits direct
transmittal to the card printer. The lead time of
printing the cards shall be supplied by the printer
when they have reviewed the logos and graphics
supplied by Bentley Commerce
c. Magnetic cards must be ordered and printed in
increments of 10,000 cards for the initial order, and
2500 cards for subsequent orders. The initial order
of 10,000 cards can be produced and held at the
printer should Virtual Barter desire to have the
barter exchange logo also lithographed on the front
of the card as noted in " EXHIBIT A"
d. The price of the card is $1.00 per card ( shipped
bulk) and $2.00 per card with members name (
individual shipping) as defined in " EXHIBIT A"
e. The front of the card will be printed with the
account number, Virtual Barter/ Bentley's name, logo
of the individual barter exchange, and the individual
member name as long as the minimums are meet.
f. Toll free number for IVR account access
g. Customer Service number designated by Bentley
Commerce (This proposal does not address any "live"
customer service for the Virtual Barter cards. Xxxxxx
Beaumont can provide fee based customer service if
required).
3) Network Servers - Development of the servers (including Host
and Database servers) to accommodate the Bentley Commerce
transactions and reporting functions will require
approximately 90 - 100 days or less completing. Bentley
Commerce shall supply a document outlining the specific
functions and features they require of the Network prior to
any development of the Network.
The NRE fees for Network development shall be made as follows:
1) $20,000 in US Currency
2) $15,000 in US currency and $5,000 in Barter currency
upon delivery of Beta system
3) $15,000 in US currency and $5,000 in Barter currency
upon delivery of finished system
Xxxxxx Beaumont shall provide necessary programmers and resources to
complete the Network in 100 days from execution of the Agreement.
19
