MEDIA RELATIONS SERVICE AGREEMENT
THIS AGREEMENT (the Agreement) is made effective as of January 1, 2001,
by and between Alliance Consulting Group, Inc., a Costa Rican corporation,
(hereinafter referred to as "Alliance" or the "Consultant") with an office at
1680 N, Vine Street, Suite 907, Hollywood, CA 90028 and Accesspoint Corporation,
Inc. 38 Executive Park, Suite 350, Irvine, CA 92614, hereinafter referred to as
("Company") (together the "Parties").
R E C I T A L S
A. WHEREAS, the Company is engaged in the business of providing
subscriber based Internet Services, electronic commerce software, electronic
commerce services, transaction technologies and service, merchant banking
services, turnkey electronic commerce and Internet based sales and business
solutions, and technology-related consulting and development services; and
B. WHEREAS, Alliance is engaged in the business of providing corporate
consulting services, public relation, marketing media relations, financial media
relations and investor relation services, management and consultation; and
C. WHEREAS, The Company desires to retain the services of Alliance and
Alliance desires to provide the Company with media relation's services, public
and investor relations' management and consultation services.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereto agree as follows:
1. NATURE OF SERVICES TO BE PROVIDED.
1.1. MEDIA RELATIONS EFFORTS. Subject to the terms and conditions
contained herein, Alliance shall use its best reasonable commercial efforts to
promote and to increase the visibility, awareness and media coverage of the
Company, its technology, products and services, by obtaining publicity for the
Company, and to provide both public and investor relations management and
consultation services (hereinafter collectively referred to as "Media
Relations") to the Company. The Company may, from time to time, provide Alliance
with promotional materials, ideas or concepts for potential use in connection
with Alliance's publicity and promotional activities for the Company.
1.2. ACCURATE PROMOTION. All Media Relations materials used by Alliance
with respect to the Company shall not be false or misleading and shall not be
inconsistent with or otherwise harm the overall publicity and promotional
campaigns, if any, which may be conducted from time to time by the Company or
its agents or representatives.
1.3. PRIOR APPROVAL OF MEDIA RELATIONS MATERIALS. Alliance shall submit
all proposed written Media Relations material to the Company and obtain the
written approval of the Company prior to any use thereof. The Company shall
promptly review all such proposed Media Relations materials and shall not
unreasonably withhold or delay its approval of any such Media Relations
material. Publication or promotion of Media Relations material without prior
approval by the Company shall be grounds, without limitation, for default and/or
termination of this Agreement by the Company without prior notice to Alliance.
As used herein, publication and/or promotion may mean electronic publication on
the Internet or otherwise.
2. RELATIONSHIP OF THE PARTIES.
2.1. LEGAL STATUS. Alliance shall be an independent contractor of the
Company in accordance with the provisions of Sections 2750.5 and 3353 of the
California Labor Code ("Code") and not an employee, agent, joint venturer or
partner. It is expressly declared that such independent contractor status is
bona fide and not a subterfuge to avoid employee status. This Agreement shall
not create an employer-employee relationship and shall not constitute a hiring
of such nature by either party.
2.2. ITEMS FURNISHED TO ALLIANCE. Unless expressly agreed in writing
otherwise, the Company shall not provide any telephone equipment or services,
office equipment, stationery, secretarial or office support services or other
items or services for the benefit of Alliance. Except as otherwise specifically
set forth herein, Alliance shall, at its own expense, provide and make
arrangement for all travel, equipment, stationery, secretarial and office
support services. Alliance shall be responsible for payment of its own expenses,
including, but not limited to those items specifically set forth above.
2.3. CONSENT OF COMPANY. Alliance shall have no right or authority at
any time to make any contract or binding promise of any nature on behalf of the
Company, whether oral or written, without the express prior written consent of
the Company.
2.4. PAYMENT OF EXPENSES. Alliance shall be responsible for and pay any
expenses it may incur in the performance of its services hereunder, except the
Company may otherwise agree in writing prior to incurring any such expense.
2.5. PAYMENT OF TAXES. Alliance shall be responsible for and pay
Alliance's own self-employment taxes, estimated tax liabilities, business
equipment or personal property taxes and other similar obligations, whether
federal, state or local. Company shall not pay or withhold any FICA, SDI,
federal or state income tax or unemployment insurance or tax or any other
amounts because the relationship of the parties hereto is not that of
employer-employee, but that of independent contractor. Alliance shall be solely
responsible for the payment of all taxes, withholdings and other amounts due in
regard to Alliance's own employees.
2.6. WORKERS COMPENSATION INSURANCE. Alliance shall obtain and maintain
at all times hereunder its own workers compensation insurance coverage at its
own expense and, upon reasonable request, provide the Company with a certificate
evidencing such coverage containing the policy number and the name and address
of the carrier. Notwithstanding any other indemnification contained herein,
Alliance shall indemnify, defend and hold the Company harmless from any and all
claims arising out of any injury, disability, or death of Alliance or any
parties working under the direction of Alliance, as its employee or otherwise,
during the performance of any services hereunder or otherwise.
2.7. LIABILITY AND OTHER INSURANCE. Notwithstanding any other
indemnification contained herein, Alliance shall indemnify, defend and hold the
Company harmless from any and all claims arising out of any such error, omission
or negligent act during the performance of any services hereunder or otherwise.
2.8. EMPLOYEES OF ALLIANCE. Alliance may subcontract with and/or employ
such parties upon such terms and conditions, as it may deem proper or necessary.
Notwithstanding any other indemnification contained herein, Alliance shall
indemnify defend and hold the Company harmless from all claims arising out of
Alliance' retention or employment of any of its subcontractors or employees, or
otherwise. Each and every subcontract or contract of employment entered into by
and between Alliance and Alliance's subcontractors or employees with regard to
any services to be performed hereunder shall state substantially as follows:
2.8.1. Alliance's subcontractors and/or employees are
subcontractors and/or employees of Alliance alone (and not of the Company);
2.8.2. Alliance's subcontractors and/or employees are to be
paid by Alliance alone (and not by the Company);
2.8.3. Alliance is contracting for the retention or employment
of such subcontractors and/or employees on Alliance's own behalf and not as an
agent of the Company; and
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2.8.4. No subcontract or contract of employment, oral or
written, implied or in fact, exists between Alliance's subcontractors and/or
employees and the Company.
2.9. ANTI-RECRUITING. Neither the Company nor Alliance shall recruit
any of the other party's employees or other affiliated personnel during or for
six (6) months after the termination of this Agreement.
2.10. LIABILITY. Alliance's activities are intended to be strictly
corporate consultation and Media / Public Relations-related. So long as
Alliance's activities are directed by and pre-approved by the Company, and are
based on the information it receives from the Company, Alliance assumes no
liability or responsibility related to said activities, or any consequences
related to said activities.
3. CONFIDENTIALITY.
3. 1. CONFIDENTIALITY. Unless specified in writing otherwise by the
party providing the same, all information pertaining to the Company, its
business, and/or any service or software of the Company, is and shall remain
confidential. The above information shall include, but not be limited to, all
computer programs, software, source codes, computations, data files, algorithms,
techniques, processes, designs, specifications, drawings, charts, plans,
schematics, computer disks, magnetic tapes, books, files, records, reports,
documents, Instruments, agreements, contracts, correspondence, letters,
memoranda, financial, accounting, sales, purchase and employment data, capital
structure information, corporate organizational information, identities, names
and address of shareholders, directors, officers, employees, contractors,
vendors, suppliers, customers, clients and all persons associated with the
Company, information pertaining to projects, projections, assumptions and
analysis, and all other data and information and similar items relating to any
party or the business of any party, whether or not furnished or prepared by any
party hereto or its agents or employees. Notwithstanding the foregoing,
confidential information shall not include: (a) any information which is
recorded in any county or filed with any public body and available for public
inspection or which may be otherwise generally available to the public, through
no unauthorized act of any party or its agents or employees; and (b) information
that is required to be disclosed pursuant to applicable law, including any court
order or subpoena. Any party may from time to time, in its sole discretion,
designate processes and techniques it deems proprietary or confidential and the
same shall be considered confidential hereunder notwithstanding anything else
herein to the contrary. Alliance and its agents and employees shall:
3.1.1. Not directly or indirectly divulge, disclose,
disseminate, distribute, license, sell or otherwise make known any confidential
information to any third party or person or entity not expressly authorized or
permitted by the Company to receive such confidential information.
3.1.2. Use best efforts to prevent disclosure of any
confidential information to any third party and exercise the highest degree of
care and discretion in accordance with all express duties hereunder to prevent
the same.
3.1.3. Except as otherwise set forth herein above, not
directly or indirectly make any use whatsoever of the confidential information
or of any feature, specification, detail or other characteristic contained in or
derived from, the confidential information, except for purposes of performing
services hereunder.
3.2. RETURN. Alliance shall return to the Company all confidential
information or other items then in its possession or control, or that of its
agents or employees, including originals, reproductions, replications and
photocopies thereof, at any time upon request by the Company or upon the
termination of this Agreement for any reason. Upon termination of this
Agreement, for any reason, all such confidential information or other items,
shall be immediately delivered over to the Company.
3.3. OWNERSHIP. All confidential information and other items, whether
or not directly furnished or prepared by the Company or its agents or employees,
and all other work product, whether or not located on the premises of the
Company or in the possession of the Company or its agents or employees or any
other person or entity, is and shall remain the property of the Company.
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3.4 ANNOUNCEMENTS. Notwithstanding the foregoing confidentiality
provisions, or any other provision in this Agreement, the parties shall use
their best reasonable efforts to mutually agree upon any Media Relations
materials, written press releases or announcements, which describe the matters
contemplated in this Agreement. No party shall, directly or indirectly, make any
other press release or public announcement, written or oral, without the prior
written consent of the Company.
3.5 THIRD PARTY APPROVALS. Alliance and the Company shall work jointly
in obtaining third party approvals so as to expedite the release of all press or
articles. The Company shall assume the final responsibility for obtaining
appropriate approvals from other companies mentioned in the Company's press
release and article ideas.
4. TERM AND TERMINATION.
4.1. TERM. Subject to any provisions set forth herein regarding early
termination of this Agreement, this Agreement shall continue for an initial term
of three (3) months, and, may be renewed upon the mutual consent of the Parties.
4.2. TERMINATION BY THE COMPANY. The Company may terminate this
Agreement without prior advance notice if the Company reasonably believes that
Alliance has breached this Agreement or any other agreement between the Company
or any agents or representatives of the Company and Alliance, or, for lack of
participation or substantial efforts by Alliance in the performance of it's
duties as outlined in this Agreement. The Company may also terminate this
Agreement without prior advance notice if the Company reasonably believes that
Alliance or any of its employees or representatives has committed any act of
dishonesty, fraud, or committed any crime or illegal act. Alliance shall,
however, be given sufficient time (not to exceed 5 days) to correct violations
for which the principal(s) are not aware of due to the actions of employees,
agents or other representatives of Alliance, exclusive of the principal(s); that
have acted without the knowledge of said principal(s). Should this Agreement be
terminated for reasons stated above, and/or default by Alliance, all payments
hereunder shall cease, and the Company shall have no further obligation to make
any such payments. Any unearned balance for cash compensation prepaid to
Alliance by the Company as out lined in Section 6 herein shall be returned to
the Company within ten (10) business days of receipt by Alliance of such
cancellation notice by the Company. To the extent that Alliance has received
stock of the Company hereunder as compensation for services not performed and/or
stock which has not otherwise been earned Alliance shall immediately return said
stock upon the termination of this agreement and hereby consents to the
placement of a stop transfer instruction pertaining to such stock with the
Company's stock transfer agent and further waives the requirement for the
posting by the Company of any bond or other security therefore.
4.3. GENERAL TERMINATION. This Agreement may be terminated at any time
upon an occurrence of an event of default, or upon prior notice at the
expiration of any Term period. Any party may, upon the occurrence of an event of
default, provide the defaulting party with written notice of the default
(provided, however, that failure to provide notice shall not constitute a waiver
of default), and allow the defaulting party 5 days to cure.
4.4. DEFAULT. Any of the following events shall constitute an event of
default hereunder ("Event of Default"):
4.4.1. The failure by any party to make full and timely
payment when due of any sum as required to be paid under this Agreement or
otherwise.
4.4.2. The failure by any party fully and timely to perform
any covenant, agreement, obligation or duty imposed on such party by this
Agreement or any other agreement by and between the parties hereto whether now
existing or herein after made.
4.4.3. The filing by any party of any petition, or
commencement by such party of any proceeding, under the Bankruptcy Act or any
state insolvency law.
4.4.4. The making by any party of any general assignment for
the benefit of creditors.
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4.4.5. The filing of a voluntary or involuntary application
for or appointment of a receiver with regard to any party.
4.04.6. The filing of any petition, or commencement of any
proceeding, under the Bankruptcy Act or any state insolvency law, against any
party, or the appointment of any receiver or trustee, which petition, proceeding
or appointment is not fully and completely discharged, dismissed or vacated
within sixty (60) days.
4.4.7. The occurrence of any such petition and or application
naming any party which then results in entry of an order for relief in any such
adjudication or appointment or remains undismissed, undischarged or unbonded for
a period of sixty (60) days.
4.4.8. The issuance of any cease or desist order or other
similar order against any party or any of such party's shareholders, principals,
partners, directors, officers, employees, agents, representatives, attorneys,
heirs, successors and assigns by any state or other jurisdiction.
4.4.9. The liquidation of any party.
4.4.10. The substantial cessation of business by any party for
a material amount of time.
5. TERMS FOR COMPENSATION.
5.1 Subject to the terms and conditions set forth herein, Alliance will
be compensated by the Company, for the above Media Relations services, according
to the compensation schedule set forth below. The Company, on a monthly basis,
shall deliver the share portions of Alliance's compensation to Alliance. The
stock portion of Alliance's compensation shall be in the form of unregistered
shares of the Company's common stock (traded under the ticker symbol OTC BB:
ASAP). Delivery of issued certificates to Alliance shall be on a monthly basis
subject to the terms and conditions set forth herein. The Company will retain
possession of any issued certificates until delivery to Alliance in accordance
with and subject to the terms and conditions set forth herein.
5.2 For the purpose of pre-determining compensation formulas within
this Agreement the cash value of the Company's shares shall be calculated as set
forth below.
COMPENSATION SCHEDULE
SHARE COMPENSATION SCHEDULE
January 1, 2001 20,000 shares
February 1, 2001 20,000 shares
March 1, 2001 20,000 shares
5.3 STOCK COMPENSATION MATTERS. Alliance hereby agrees that it shall
not transfer, sell, assign, pledge, or make any other disposition of stock or
options which has been paid by the Company hereunder as compensation for
services not performed and/or stock and /or options which has not otherwise been
earned and/or purport to make any transfer, sale, assignment, pledge or any
other disposition with regard to said stock or option. Alliance shall indemnify,
defend, and hold harmless the Company and it's share holders, directors,
officers, employee's, representatives and assigns, and it's and their
properties, from and against any and all claims, actions, causes of actions,
disputes, contracts, damages, liabilities and penalties (including, without
limitation, attorneys fees and costs with council to be chosen by the Company),
whether asserted by third parties or otherwise, arising or related to any
impermissible transfer, sale, assignment, pledge, or other disposition of shares
and options unearned as set forth above.
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5.4 FIRST PAYMENT. Payment for the first month's invoice of $20,000
with 20,000 unregistered shares of the Company's common stock is due to Alliance
upon the signing of this Agreement. The Company shall pay all subsequent
invoices to Alliance within ten (10) days of their receipt.
5.5 EXPENSES. All out of pocket expenses over five hundred dollars
($500.00) shall be pre-approved by the Company prior to being undertaken by
Alliance.
5.6 ADDITIONAL COMPENSATION. The Company hereby grants to Alliance the
Option to Purchase 30,000 shares of the Company's common stock (otcbb: ASAP)
from the Company for the sum of $1 per share (one dollar) for a period of 1 year
from the date of execution of the Agreement. Such options shall vest, subject to
the terms and conditions of this Agreement, on a prorata basis over a
three-month period from the date of execution of the Agreement.
6. SECURITIES MATTERS.
6.1. Alliance acknowledges that The Company has made available to
Alliance or Alliance's personal advisors the opportunity to obtain any and all
information required to evaluate the merits and risks of purchase of the shares,
The Company has, prior to the sale of the Shares, accorded Alliance and
Alliance's representative, if any, the opportunity to ask questions and receive
answers concerning the terms and conditions of the proposed purchase and to
obtain any additional information necessary to evaluate the merits and risks of
the purchase.
6.2. Alliance and (if applicable) Alliance's Purchaser Representative
have had an opportunity to ask questions of and receive satisfactory answers
from The Company, or any person or persons acting on The Company's behalf,
concerning the terms and conditions of Alliance's proposed investment in The
Company, and all such questions have been answered to the complete satisfaction
of Alliance.
6.3. Alliance represents that all of the information provided by
Alliance or Alliance's representatives to The Company is true, correct, accurate
and current and that Alliance is not subject to backup withholding.
6.4. The personal, business and financial information of Alliance,
which may have been provided to The Company, if any, and in any form, is
complete and accurate, and presents a true statement of Alliance's financial
condition.
6.5. Alliance is able to bear the economic risks of Alliance's
investment in the Shares and, consequently, without limiting the generality of
the foregoing, Alliance is able to hold Alliance's Shares for an indefinite
period of time, and Alliance has a sufficient net worth to sustain a loss of
Alliance's entire investment in The Company in the event such loss should occur.
6.6. Alliance understands that the Shares will not be transferable
except under limited circumstances and in accordance with Rule 144.
6.7. Alliance has such knowledge and experience in financial and
business matters that Alliance is capable of evaluating the merits and risks of
an investment in The Company or (if applicable) Alliance and Alliance's
Representative, together, have such knowledge and experience in financial and
business matters that Alliance and Alliance's Alliance Representative are
capable of evaluating the merits and risks of the Prospective investment in The
Company.
6.8. The Shares will be acquired for Alliance's own account for
investment in a manner which would not require registration pursuant to the
provisions of the Act, as amended, and Alliance does not now have any reason to
anticipate any change in Alliance's circumstances or other particular occasion
or event which would cause Alliance to sell or otherwise dispose of the Shares.
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6.9. Alliance understands that the Commissioner of Corporations for the
State of California or any other state ("Commissioner") has not or will not
recommend or endorse a purchase of the Shares.
6.10. Alliance hereby represents and warrants that Alliance's total
acquisition of Shares hereunder shall not exceed 10% of Alliance's net worth
(exclusive of certain statutory items).
6.11. Alliance: (i) has a pre-existing personal or business
relationship with The Company, its officers, directors or its Affiliates or
representatives, AND (ii) meets those certain standards involving Alliance's
minimum net worth and annual income as established by the California
Commissioner of Corporations relating to Alliance's income and net worth, or is
an Accredited Investor as defined in rule 501 (a) of Regulation D as promulgated
by the Securities and Exchange Commission. The foregoing income and net worth is
considered to be indicative of Alliance's ability to be sophisticated regarding
the proposed purchase of shares.
6.12. Alliance is not a member of the NASD or other self-regulatory
agency, which would require prior approval of a purchase of the shares.
6.13. Alliance acknowledges that Alliance understands the meaning and
legal consequences of the representations, warranties, and covenants set forth
herein, and that the Company has relied on such representations, warranties and
covenants.
6.14. Alliance acknowledges and understands that the Shares will be
subject to transfer and sale restrictions imposed pursuant to SEC Rule 144 of
the Rules promulgated under the Securities Act of 1933 ("Act") and the
regulations promulgated there under. Alliance shall comply with Rule 144 and
with all policies and procedures established by The Company with regard to Rule
144 matters. Alliance acknowledged that The Company or its attorneys or transfer
agent may require a restrictive legend on the certificate or certificates
representing the Shares pursuant to the restrictions on transfer of the Shares
imposed by Rule 144.
6.15. Alliance acknowledges that Alliance is aware that there are
substantial restrictions on the transferability of the Shares. Because the
Shares will not, and Alliance has no right to require that the Shares, be
registered pursuant to the provisions of the Act or otherwise, Alliance agrees
not to sell, transfer, assign, pledge, hypothecate or otherwise dispose of any
Shares unless such sale is exempt from such registration pursuant to the
provisions of the Act. Alliance also acknowledges that Alliance shall be
responsible for compliance with all conditions on transfer imposed by the
Commission for any expenses incurred by The Company for legal and accounting
services in connection with reviewing such a proposed transfer and issuing
opinions in connection therewith. Subject to the terms and conditions of this
Agreement and the Act, the Company acknowledges that it will promptly agree to
and facilitate the removal of the restrictive legend on the shares of stock
issued to Alliance under this Agreement, upon request of Alliance and in
accordance and compliance with Rule 144 of the Act.
6.16. Alliance understands and agrees that the following restrictions
and limitations are applicable to Alliance's purchase and any sale, transfer,
assignment, pledge, hypothecation or other disposition of Shares pursuant to
Section 4(2) of the Act and Regulation D promulgated pursuant thereto:
6.16.1. Alliance agrees that the Shares shall not be sold,
pledged, hypothecated or otherwise disposed of unless the Shares are registered
pursuant to the Act and applicable state securities laws or are exempt there
from; and
6.16.2. A legend or legends in substantially the following
form or forms may be placed on any certificate(s) or other documents evidencing
the Shares:
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THE SECURITIES REPRESENTED BY THIS INSTRUMENT OR DOCUMENT HAVE BEEN
ACQUIRED FOR INVESTMENT ONLY AND HAVE NOT BEEN REGISTERED PURSUANT TO
THE PROVISIONS OF THE SECURITIES ACT OF 1933 AS AMENDED ("ACT"), AND
HAVE BEEN OFFEREDAND SOLD IN RELIANCE UPON THE EXEMPTION SET FORTH IN
SECTION 4(2) OF THE ACT AND UPON RULE 504 OF REGULATION D PROMULGATED
PURSUANT THERETO. WITHOUT SUCH REGISTRATION, SUCH SECURITIES MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF, EXCEPT UPON DELIVERY TO ACCESSPOINT OF AN OPINION OF
COUNSEL SATISFACTORY TO ACCESSPOINT THAT REGISTRATION IS NOT REQUIRED
FOR SUCH TRANSFER OR THE SUBMISSION TO ACCESSPOINT OF SUCH OTHER
EVIDENCE AS MAY BE SATISFACTORY TO ACCESSPOINT TO THE EFFECT THAT ANY
SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE ACT, APPLICABLE STATE
SECURITIES LAWS OR ANY RULE OR REGULATION PROMULGATED THEREUNDER.
THE SHARES OFFERED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF CERTAIN STATES,
AND ARE BEING OFFERED AND SOLD IN RELIANCE ON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. THE SHARES HAVE NOT
BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION,
ANY STATE SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY.
PERSONS ACQUIRING SHARES MAY BE REQUIRED TO HOLD THE SHARES
INDEFINITELY UNLESS SUCH SHARES ARE SUBSEQUENTLY REGISTERED UNDER THE
SECURITIES ACTOF 1933 ("ACT") OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. NO SHARES MAY BE SOLD, ASSIGNED OR OTHERWISE TRANSFERRED
UNLESS ACCESSPOINT AND ITS LEGAL COUNSEL HAVE RECEIVED EVIDENCE
SATISFACTORY TO BOTH THAT SUCH TRANSFER DOES NOT INVOLVE A TRANSACTION
REQUIRING QUALIFICATION OR REGISTRATION UNDER STATE OR FEDERAL
SECURITIES LAWS AND IS IN COMPLIANCE WITH SUCH LAWS.
7. WARRANTIES AND INDEMNIFICATION
7.1. WARRANTIES. Alliance warrants and represents the following:
7.1.1. Alliance possesses all licenses and bonds necessary or
required to perform services hereunder;
7.1.2. All of Alliance's subcontractors and employees possess
all licenses and bonds necessary or required to perform services hereunder;
7.1.3. The services of Alliance's subcontractors or employees
shall be performed in full compliance with the terms and conditions of this
Agreement;
7.1.4. All services performed hereunder shall be performed in
accordance with all federal, state and local laws, rules or regulations.
7.2 INDEMNIFICATION BY ALLIANCE. Alliance, and Alliance's agents,
representatives, heirs, successors and assigns, shall indemnify, defend and hold
the Company, the shareholders, principals, partners, directors, officers,
employees, agents, representatives, attorneys, heirs, successors and assigns of
the Company and the property of the Company, free and harmless from any and all
claims, losses, damages, injuries, and liabilities, including the Company's
attorney fees and costs, arising from or in any way connected with the
performance of services under this Agreement by Alliance, its agents,
subcontractors, or employees. The Company may choose its own counsel when
defended hereunder.
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7.3. INDEMNIFICATION BY ACCESSPOINT. Subject to the terms and conditions of this
Agreement, Accesspoint, and Accesspoint's agents, representatives, heirs,
successors and assigns, shall indemnify, defend and hold Alliance, free and
harmless from any and all claims, losses, damages, injuries, and liabilities,
including Alliance's attorney fees and costs, arising from or in any way
connected to the approved use of information about Accesspoint provided to
Alliance by or on behalf of Accesspoint. Accesspoint warrants that such
information shall not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements made, in light of the
circumstances in which they were made, not misleading,
8. NOTICES.
8.1 All reports, communications, requests, demands or notices required
by or permitted under this Agreement shall be in writing and shall be deemed to
be duly given on the date same is sent and acknowledged via hand delivery,
facsimile or reputable overnight delivery service (with a copy simultaneously
sent by registered mail), or, if mailed, five (5) days after mailing by
certified or registered mail, return receipt requested, to the party concerned
at the following address:
If to Alliance: If to the Company:
Alliance Consulting Group Inc. Accesspoint Corporation
1680 N. Vine Street, Suite 907 38 Executive Park, Suite 350
Hollywood, CA 90028 Irvine, CA 92614
Tel: Tel: (949) 852-8526
Fax: 888-529-9982 Fax: (949) 852-8527
Attn: Larry Hartman Attn: Tom Djokovich
Any party may change the address to which such notices and communications shall
be sent by written notice to the other parties, provided that any notice of
change of address shall be effective only upon receipt.
9. MISCELLANEOUS.
9.1. INTEGRATION. This Agreement sets forth the entire Agreement and
understanding between the parties, or to the subject matter hereof and
supersedes and merges all prior discussion, arrangements and agreements between
them.
9.2. AMENDMENTS. This Agreement may not be amended or modified except
by written instrument signed by each of the parties hereto.
9.3. FURTHER ACTS. The parties hereto shall cooperate with each other
and execute such additional documents or instruments and perform such further
acts as may be reasonably necessary to affect the purpose and intent of the
Agreement.
9.4. EFFECT OF HEADINGS. The subject headings of the paragraphs and
subparagraphs of this Agreement are included for purposes of convenience only,
and shall not affect the construction or interpretation of any of its
provisions.
9.5. COUNTERPARTS. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Any exhibits
attached hereto and initialed by the parties are made a part hereof and
incorporated herein by this reference.
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9.6. PARTIES IN INTEREST. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third party to this Agreement, nor
shall any provision give any third person any right of subrogation or action
over against any party to this Agreement.
9.7. ASSIGNMENT. Except as specifically set forth herein no party may
transfer, assign, sell, pledge, or hypothecate, or purport to transfer, assign,
sell, pledge, or hypothecate, this Agreement without the prior written consent
of the other parties. To the extent this Agreement may be transferred or
assigned, this Agreement shall be binding on, and shall inure to the benefit of,
the parties to it and their respective heirs, legal representatives, successors
and assigns. Notwithstanding the foregoing, the Company may assign its rights
hereunder without written consent from Alliance if the party to whom this
Agreement is to be assigned will be of an equal or superior credit quality than
the Company at the time of execution of the Agreement and will be capable of
performing all of the Company's requirements under this Agreement, including the
issuance of stock to Alliance.
9.8. RECOVERY OF LITIGATION COSTS. If any legal action or any
arbitration or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover as an
element of their damages, reasonable attorneys' fees and other costs incurred in
that action or proceeding, in addition to any other relief to which they may be
entitled.
9.9. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. All representations,
warranties and agreements of the parties contained in this Agreement, or in any
instrument, certificate, opinion or other writing provided for in it, shall
survive the termination of this Agreement.
9.10. GENDER; NUMBER. Whenever the context of this Agreement requires,
the masculine gender includes the feminine or neuter gender, and the singular
number includes the plural.
9.11. GOVERNING LAW . This Agreement shall be construed in accordance
with, and governed by, the laws of the State of California, without regard to
choice of law rules or the principals of conflict of laws.
9.12. FORUM SELECTION. Any litigation shall be brought and litigated in
the state courts of California or in the United States district court (s)
servicing California. All parties hereto consent to the personal jurisdiction of
such courts and waive any defense of forum non-conveniens.
9.13 SEVERABILITY. In the event that any one or more provisions of this
Agreement shall be held invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
9.14. WAIVER. No failure or delay on the part of either party in
exercising any power or right under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No waiver by either party of any provision of this Agreement, or
of any breach of default, shall be effective unless in writing and signed by the
party against whom such waiver is to be enforced. All rights and remedies
provided for herein shall be cumulative and in addition to any other rights or
remedies such parties may have at law or in equity.
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IN WITNESS WHEREOF, this Agreement is effective on the date first set forth
above at Orange County, California.
Alliance Consulting Group, Inc. Accesspoint Corporation
By: /s/ Lawrence Hartman By: /s/ Tom M. Djokovich
- ------------------------------- --------------------------------
Lawrence Hartman, Tom M. Djokovich,
Director as Chairman and Chief Executive
Officer
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