Exhibit 10.1
OPPORTUNITY AND STRATEGIC ALLIANCE AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of September, 2002,
by and between Energy Professional Marketing Group, Inc., a Utah corporation
("EPMG"), a wholly-owned subsidiary of Innovative Software Technologies, Inc.,
with its principal place of business at 5072 North 300 West Provo, Utah 84604
and Education Success, Inc., a Utah corporation ("ESI"), with its principal
place of business at 1354 South 1370 East, Provo, Utah 84606.
RECITALS:
A. EPMG and ESI are engaged in independent business enterprises, including the
development and promotion of Internet marketing tools and services; and
B. The parties each have and share an interest in entering into a strategic
relationship whereby each might benefit from certain opportunities and
agreements, for their mutual and respective profit and business
development; and
C. The parties desire to memorialize by this instrument and agreement the
formation of such an alliance relating specifically to certain business
opportunities in which ESI has acquired or holds certain rights and
equities in which EPMG wishes to participate, and to set out the terms and
conditions governing said relationship.
D. The parties acknowledge that EPMG does not wish to be in the small sales
Internet marketing business (sales under $100.00 per sale) and lead
generation business. EPMG and ESI also acknowledge that there is common
ownership between ESI and Innovative Software Technologies, Inc. and that
this does not create a conflict of interest between the parties.
E. The parties acknowledge that EPMG will pay out to ESI only on cash sales
and that finance sales will belong to EPMG with no commissions being paid
on these sales other than the cash portion of the sale.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises, covenants and
undertakings of the parties hereto and for other good and valuable
consideration, it is agreed as follows:
1. ESI is currently negotiating, and also anticipates obtaining certain rights,
under services contracts and agreements with various companies. These contracts
and agreements extend opportunity benefits to ESI to generate leads which then
can be used to market additional products and services.
2. EPMG hereby agrees to purchase from ESI and ESI hereby agrees to transfer and
convey to EPMG leads.
3. EPMG will make the cash payments required under paragraph 2(b) above in the
respective amounts for leads provided, as follows:
a. EPMG will generate sales from the leads given them by ESI. The gross
sales generated will be adjusted for a reserve against future
cancellations. This reserve will be 4%. The remaining monies will be
split with 66% going to EPMG and 34% to ESI.
b. EPMG will remit to ESI a weekly settlement on Friday for the previous
week's sales.
c. EPMG and ESI will equally pay any royalties associated with sales by
EPMG.
4. All sales of products and services from all leads generated as a result of
ESI's efforts will be processed through EPMG's merchant account. In such cases,
ESI's and EPMG's respective obligations shall be calculated and satisfied
between them, pro rata, based on the percentages of their respective sales and
revenue under the separate principal contracts. EPMG shall furnish to ESI a
calculation and accounting of such share division. ESI shall have the right to
audit such calculations and accounting, directly or through an authorized
representative, not more often than [quarterly] upon reasonable advance notice,
during normal business hours.
5. The purpose and intent of the parties under this Agreement is to join and
cooperate in the promotion and exploitation of certain business opportunities,
including the parties' opportunities to sell and otherwise to market their
respective services and products, as set forth herein. The parties intend only
to divide between them marketing opportunities resulting from rights accruing
under the contracts in which each, by this Agreement, shall participate. The
parties understand and acknowledge that this Agreement does not extend to or
anticipate a pro-rata division of actual income, or of the parties' respective
costs and expenses.
6. The parties do not intend by this relationship to form a joint venture or
partnership. Each is and shall remain, relative to each other and to all third
parties, independent contractors, whose rights and relationships shall be
governed exclusively by this Agreement.
7. The term of this Agreement is coextensive with the terms of each of the
Principal Contracts, including any extensions thereof.
8. EPMG acknowledges that the rights obtained under this Agreement are rights
derived from efforts by and business opportunities extended to ESI. EPMG
covenants and agrees that it will not communicate, correspond, deal, or
negotiate with any party to the Principal Contracts (or to attempt to do so or
anything similar or equivalent) or to compete with ESI's rights or relationships
with such parties or otherwise to circumvent this Agreement.
9. General Provisions.
a. Indemnification. Each party agrees to indemnify the other, including
any parent, subsidiaries or affiliates, together with officers, agents
and employees of said entities, from and against any and all claims,
liability, actions, causes of action, judgments or regulatory actions,
along with associated costs and fees, arising
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from, in connection with, or as a result of the products and services
of the indemnifying party. Notwithstanding the foregoing, neither
party shall be required to indemnify the other party from claims or
actions arising solely from the other party's actions or the actions
of the other party's agents or employees.
b. Public Announcements and Promotional Materials. EPMG and ESI shall
cooperate with each other either to issue a joint press release and/or
to enable each party to issue and post to its web site an announcement
concerning this Agreement, provided that each party must approve any
such press announcement prior to its release. Any separate release
shall be subject to must approve such press release prior to its
release.
c. Force Majeure. If either party is prevented from performing any
portion of this Agreement (except the payment of money) by causes
beyond its control, including labor disputes, civil commotion, war,
governmental regulations or controls, casualty, inability to obtain
materials or services or acts of God, such defaulting party will be
excused from performance for the period of the delay and for a
reasonable time thereafter.
d. Dispute Resolution. The parties agree to attempt in good faith to
resolve all disputes arising between them first through mediation (to
be commenced within 48 hours from the receipt by a party of the notice
described below) and, if mediation is not successful, through
negotiated settlement or court action. Neither party shall file a
lawsuit until the mediation has been completed, except that in the
event that the actions of one party will cause or are causing the
other immediate irreparable injury requiring temporary injunctive
relief and the other party is unwilling to suspend its planned or
existing activity to allow for expedited mediation, the aggrieved
party may file suit and seek such temporary injunctive relief in a
court with jurisdiction over the subject matter of the dispute.
Dispute resolution under this section shall be triggered by one
party's service upon the other of a written notice and request to
mediate, identifying the subject matter of the dispute and the nature
of the relief sought. Unless otherwise agreed in writing at the time
of mediation, mediation shall be conducted through and under the
mediation rules of the American Arbitration Association in the County
of residence of the party against whom a mediation demand is directed.
e. Limitation of Actions. Either party may bring no action arising or
resulting from this Agreement, regardless of its form, more than two
(2) years after termination of this Agreement.
f. Jurisdiction. This Agreement will in all respects be governed by and
construed in accordance with the laws of the State of Utah.
Notwithstanding, any action against EPMG or ESI shall be subject to
the exclusive jurisdiction of the federal or state courts in Utah.
g. Attorneys' Fees. Each party agrees to pay the other's reasonable
attorneys' fees and costs of litigation if the original party, for any
cause whatsoever, brings suits
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against the other party and the other party is finally adjudicated to
be the prevailing party in such litigation.
h. Waiver. No waiver of any right or remedy on one occasion by either
party will be deemed a waiver of that right or remedy on any other
occasion.
i. Superior Agreement. This Agreement will not be supplemented or
modified by any course of dealing or usage of trade. Variance from or
addition to the terms and conditions of this Agreement in any written
notification from either party will be of no effect, unless otherwise
expressly provided for in this Agreement. This Agreement may be
amended or modified only by a writing signed by each party.
j. Assignment. This Agreement is not assignable by either party, in whole
or in part, without the other party's prior written consent.
Notwithstanding, neither party will unreasonably withhold consent to
an assignment of this Agreement or any part of this Agreement to a
parent, subsidiary or affiliate of the other party, provided that such
entity is at least as capable as the assigning party of satisfying
that party's responsibilities hereunder. Any attempted assignment
without the required written consent will be null and void.
k. Notice. Unless otherwise agreed to by the parties, all notices
required under this Agreement will be deemed effective when received
and made in writing by either (ii) registered mail, (ii) certified
mail, return receipt requested, or (iii) overnight mail, addressed and
sent to the address indicated on the Signature Page, to the attention
of the person designated as the responsible representative or to that
person's successor.
l. Severability. If any term, provision, covenant or condition of this
Agreement is held invalid or unenforceable for any reason, the
remainder of the provisions will continue in full force and effect as
if this Agreement had been executed with the invalid portion
eliminated. The parties further agree to substitute for the invalid
provision a valid provision that most closely approximates the intent
and economic effect of the invalid provision.
m. Independent Contractors. Each party acknowledges that the parties to
this Agreement are independent contractors and that it will not,
except as may otherwise be expressly allowed under this Agreement,
represent itself as an agent or legal representative of the other. The
parties do not intend, by this Agreement, to enter into any
partnership or joint venture.
n. Headings. The headings provided in this Agreement are for convenience
only and will not be used in interpreting or construing this
Agreement.
o. Scope of Agreement. Each of the parties hereto acknowledges that it
has read this Agreement, understands it and agrees to be bound by its
terms. The parties further agree that this Agreement is the complete
and exclusive statement of agreement regarding the subject matter and
supersedes all proposals (oral or written), understandings,
representations, conditions, warranties, covenants and
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all other communications between the parties relating to the express
subject matter hereof. This Agreement may be amended only by a writing
that refers specifically to this Agreement and is signed by both
parties.
Dated as of the date first set forth above.
Energy Professional Marketing Group, Inc.
By: /s/ D. Shane Hackett
Its: Director, Chairman
5072 North 300 West
Provo, Utah 84604
Education Success, Inc.
By: /s/ Ethan A. Willis
Its:
1354 South 1370 East
Provo, Utah 84606
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