CASH FLOW
MANAGER
License Agreement
LICENSOR: TOWNE SERVICES, INC., LICENSEE:
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"We", "Us" or "Our" means Towne Services, Inc. and its subsidiaries
(collectively referred to herein as LICENSOR), its successors and assigns. "You"
or "Your" means the Financial Institution named above (LICENSEE), its successors
and assigns.
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You and we agree as follows:
SECTION 1. GRANT OF LICENSE. Subject to the terms and conditions set forth in
this agreement, we hereby grant to you (and to any branch offices maintained by
you) and you hereby accept (a) the non-exclusive and non-transferable right and
license to offer the CashFlow Manager program, as hereinafter defined, to your
customers; and (b) the right and license to use our CashFlow Manager program,
software, trade names, service marks, trademarks, copyrights, patents,
electronic data processing methods, accounts receivable forms, including forms
and programs presently available and forms and programs developed by us for use
with the CashFlow Manager program. Unless the context denotes otherwise, the
term "customer" means all your current and prospective customers other than
financial institutions.
SECTION 2. RESERVATION OF RIGHTS. You acknowledge our claimed interest in and
exclusive right to the CashFlow Manager program and all component parts thereof,
including without limitation, computer programs, software, trade names, service
marks, trademarks and trade names, copyrights, patents, electronic data
processing methods, all forms including forms and programs presently available
and forms and programs developed by us for use with the CashFlow Manager
program, manuals, bulletins, procedures or supplements, devices and insignia we
may use from time to time in conjunction with the CashFlow Manager program
(hereinafter "the CashFlow Manager program" or "Program").
SECTION 3. PROGRAM SERVICES. We will install, setup and maintain the computer
software at one (1) site location designated by you for your CashFlow Manager
Program. You agree that you will obtain or use computer hardware that meets the
requirements specified by us. You also agree to provide qualified personnel,
either on your own premises or through contract with some other firm, sufficient
to operate the Program for your Program customers. Prior to offering the
CashFlow Manager Program to your customers, we will provide on-line instruction
to your employees or designated representatives concerning the proper operation
of the Program, and will provide these persons with Program operating materials.
You agree that your employees or representatives will take such instruction as
we may from time to time reasonably request. In addition, we agree to install,
setup and maintain the computer software and provide the training described in
this paragraph at additional site location(s) designated by you upon receipt of
the Multiple Site Installation Fee provided for in Section 8 of this agreement.
BUSINESS CONSULTING AND MARKETING SERVICES. In addition, we will provide you
with the services of one or more Program consultants who will assist you in the
marketing of the Program to your customers in accordance with marketing plans
developed between you and us. This includes, but is not limited to, the
providing of telemarketing services to customers selected by you, customer
presentations, and other services related to your approval of the customer for
the Program. You acknowledge that the consultant's services are not exclusive to
you, but that such services will be provided in accordance with schedules
mutually acceptable to you and the consultant. In the event of any disagreement
or dissatisfaction arising concerning the services rendered to you by the
consultant, we agree that we will replace such consultant with another
consultant acceptable to you within a reasonable period if, after notice from
you, such disagreement or dissatisfaction with the consultant cannot be
resolved.
OTHER SUPPORT. We will also provide you, your employees or your designated
representatives with Program training, forms and other materials to assist you
in compliance with federal, state and local law
applicable to the Program. However, we do not undertake the responsibility of
advising you of any laws, rules, regulations, or interpretations affecting you,
your customers, or your participation in the Program.
SECTION 4. CONFIDENTIALITY. You acknowledge that the procedures, electronic data
processing methods, forms and techniques furnished by us as a part of the
CashFlow Manager Program and contained in the CashFlow Manager software and
manuals are unique and confidential. In order to protect the value of the
confidential information licensed to you, you agree to retain in confidence, and
to require your employees, agents and representatives to retain in confidence,
all such information and know-how transmitted to you by us. You agree not to use
the confidential material communicated to you by us except for the purpose and
to the extent necessary for the operation of the CashFlow Manager Program
pursuant to the license granted herein. The CashFlow Manager documentation and
manuals will at all times remain our sole property and will promptly be returned
to us upon the expiration or termination of this agreement.
We acknowledge and agree that any information or data coming into our possession
concerning you, your operations and your customers is unique and confidential.
We agree to retain in confidence, and to require our employees, agents and
representatives to retain in confidence, all such information and will not make
use of the confidential material communicated to us by you except for the
purpose and to the extent necessary for the operation of the CashFlow Manager
Program pursuant to this agreement.
Your and our obligations under this Section will survive the expiration or a
termination of this Agreement.
SECTION 5. SOFTWARE MODIFICATIONS AND ALTERATIONS. We agree that we will furnish
to you, at no additional cost to you, any updates and upgrades developed by us
for the CashFlow Manager software during the term of this agreement. You agree
to timely implement any and all changes to the CashFlow Manager software which
are deemed necessary by us for the proper operation of the Program. You agree
that the CashFlow Manager software will be used in accordance with the
instructions contained in the instructional and operating information provided
by us. No modifications or changes will be made by you with the Program software
unless written approval is first obtained from us. In the event modifications or
changes are made by you, or your employees or representatives, you agree that we
will have the right to use such changes and, at our option, to incorporate the
changes into the CashFlow Manager Program and to make them available to third
parties.
SECTION 6. OPERATING MATERIALS. You agree to purchase from us any specialized
forms which are required for use in conjunction with the CashFlow Manager
Program. We agree to allow and assist other reputable and competent printers
selected by you to reproduce or print the forms required by the CashFlow Manager
Program so long as such printers conform to the standards or specifications
established by us.
SECTION 7. PROGRAM MARKETING MATERIALS AND OBLIGATIONS. We will make standard
promotional material available to you at a reasonable cost. You agree to solicit
your selected creditworthy commercial customers via letter and/or brochure
mailing at least once per year. During the term of this agreement, you also
agree that you will offer no other program of a similar nature to your
customers.
SECTION 8. LICENSE FEES; MULTIPLE SITE INSTALLATION FEES. In consideration of
the trademark, licenses and rights herein granted by us to you, and in
consideration of the use of the trade names or trademarks, CashFlow Manager
Program and CashFlow Manager in our confidential manuals and materials, you
agree to pay us the fees set forth below. . In the event you elect to install
the Program at additional site location(s), you agree to pay us a Multiple Site
Location Fee for each such installation to provide for our cost of installing
and maintaining the software at such location(s) and providing the technical
support and training set forth in this Agreement.
MULTIPLE SITE INSTALLATION FEE: $**** PER ADDITIONAL SITE LOCATION.
SECTION 9. ONGOING SUPPORT FEES; VOLUME REBATES. As additional consideration for
our initial and continuing marketing, technical and Program support, you agree
to pay us ****% of the amount of the Initial Balance of the receivables
purchased by you from each new CashFlow Manager customer and an
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ongoing support fee equal to ****% of the total discount fees charged or taken
by you in each subsequent month with respect to "ongoing purchases" of
receivables from each CashFlow Manager customer. As used herein, the term
"Initial Balance" purchase means the first purchase of receivables from a
CashFlow Manager Customer (or the first 30 days' receivables acquired by you if
you either (i) acquire less than all of the CashFlow Manager customer's
receivables existing on the date of the first purchase of receivables, or (ii)
if such CashFlow Manager customer has no existing receivables which will be
purchased by you until after the date of the first purchase of receivables).
"Ongoing purchases" means purchases of receivables from a CashFlow Manager
Customer subsequent to the Initial Balance purchase.
SUPPORT FEE REBATES. We agree to pay you a marketing rebate based upon the
monthly volume levels of ongoing receivable purchases made by you from your
CashFlow Manager customers. These volume levels and the amount of the rebate
percentage applicable to each volume level as applied to the discount fees
charged or taken by you in a specific month are as follows:
LEVEL AMOUNT OF RECEIVABLES PURCHASED REBATE PERCENTAGE* (OF DISCOUNT FEE)
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I $**** - $****.......................... ****%
II $**** - $****...........................****%
III $**** + ...........................****%
* The net effective ongoing support fee rate at these levels is **%, **% and
**%, respectively.
These volume rebate percentages shown above are applied separately to each of
the specific volume levels to which they relate (e.g., the rebate percentage for
receivable purchases between $**** and $**** is ****% regardless of the total
receivables purchased in that month, etc.). These marketing rebates will be
processed by us approximately forty-five (45) days after the close of the
calendar month to which the rebate relates, and payable by us to you no more
than sixty (60) days beyond the close of the calendar month to which the rebate
relates. The rebates will be applicable to: (1) all ongoing support fees which
are normally processed and invoiced during a calendar month which (2) are paid
to us no later than twenty-five (25) days following the invoice date. Rebates
will not be given with respect to any ongoing support fees which are paid to us
more than 25 days beyond the invoice date.
SECTION 10. REPORTING AND PAYMENT OF ONGOING SUPPORT FEES. You agree to report
to us each month, on forms supplied by us, the amount of receivables purchased
during the preceding month, and remit by check the fees due to us under this
agreement. All ongoing support fees will be due and payable within twenty-five
(25) days of the invoice date. Amounts which are due and not paid to us as
provided in this agreement will thereafter bear interest at the rate of eighteen
percent (18.0%) per annum.
SECTION 11. TERM OF AGREEMENT, TERMINATION . This agreement will be effective on
the date of execution by us, and will be for an initial term of five (5) years
(the "Initial Term"). At the end of the Initial Term, and on each anniversary
date thereafter, this agreement will automatically extend for an additional year
beyond the Initial Term, or renewal term, unless we or you give written notice
to the other of non-extension at least sixty (60) days prior to the expiration
date of the Initial Term, or renewal term of this agreement. From and after such
effective date of termination, for any reason, you shall cease processing sales
through the Program, shall cease displaying the service marks, symbols, and
names related to the Program, and shall promptly return to us all materials
relating to the Program. All of your obligations incurred or existing under this
agreement as of the date of termination shall survive such termination,
including those set forth in Section 15 below.
This agreement may also be terminated during the Initial Period, as set forth
below.
INITIAL PERIOD. The first twelve (12) months of the Initial Term of this
agreement will be deemed the "Initial Period." If you have not purchased of a
minimum of $100,000 in Initial Balance purchases of receivables (as defined in
this agreement) during the Initial Period, we agree that you will have the right
and option either to: (i) terminate this agreement; or (ii) to continue the
Program without a termination of this agreement. To terminate this agreement,
you must give us written notice of your election to terminate within thirty (30)
days following the expiration of the Initial Period. In the event you give us
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notice of termination under these circumstances, this agreement will terminate
on the date specified in the notice. If you do not give us written notice under
these circumstances, we will continue the Program without a termination of this
agreement. Any ongoing support fees which are outstanding at the time of a
termination will be immediately due and payable to us.
EARLY TERMINATION AFTER THE INITIAL PERIOD. After the Initial Period expires, we
agree that you will have the right to terminate this agreement by giving us
ninety (90) days prior written notice of termination, subject to the remaining
provisions of this Section and Section 15. In the event you terminate this
agreement prior to the expiration of the Initial Term or a renewal term (except
a termination which arises out of our uncured default), any ongoing support fees
which are outstanding at the time of a termination and all other fees which have
not been paid previously by you will be due and payable 25 days after the date
of termination specified in your notice.
ONGOING PURCHASE FEE OBLIGATIONS AFTER EXPIRATION OR TERMINATION. As additional
consideration for the license and services we provide in connection with the
Program, you agree to pay an ongoing purchase fee ("OP Fee") with respect to
each CashFlow Manager customer for a period of twenty-four (24) months following
the expiration or termination of this agreement if you continue to offer an
accounts receivable financing program of a nature similar to CashFlow Manager
("replacement program") to such customer. So long as the OP Fee is payable under
these circumstances, you agree to report to us each month, on forms supplied by
us, the amount of receivables purchased during the preceding month, and remit by
check the fees due to us under this section. All OP Fees will be due and payable
on or before the 25th day of each month for purchases made in the preceding
month.
We agree that you will have no OP Fee obligation if you do not offer, or once
you discontinue to offer, your replacement program to such CashFlow Manager
customer. We also agree that you will have no OP Fee obligation with respect to
new customers added to your replacement program following a termination or
expiration of this agreement, or if the termination of this agreement arises out
of our uncured default in obligations to you under this agreement. The OP Fee
provided for in this section shall be calculated in the same manner as the
ongoing support fees provided for in Section 9, including any applicable volume
rebate provisions.
EARLY TERMINATION BY BREACH. If either party materially defaults in the
performance of any obligation under this agreement, and this default continues
for a period of thirty (30) days after written notice is given by the
non-defaulting party, then the non-defaulting party will have the right, at its
option, to terminate this agreement by giving written notice of such
termination.
SECTION 12. PROGRAM SOFTWARE; LIMITED WARRANTY. As additional consideration for
this license, you agree not to reproduce copies of the CashFlow Manager software
except to the extent required to operate your CashFlow Manager Program.
PROGRAM SOFTWARE AND DOCUMENTATION. We warrant the physical software media and
documentation to be free of defects in materials and workmanship and that each
will substantially conform to the specifications and applications set forth in
our documentation during the term of this agreement, provided it is used with
computer hardware which meets minimum specifications as determined by us during
the term of this agreement. However, we make no representation or warranty that
the software or documentation is "error-free" or meets any user's particular
standards, requirements or needs. If we receive notice of any defects in the
software from you, we will replace the defective software media or
documentation.
The entire and exclusive liability and remedy for breach of this limited
warranty is limited to replacement of the defective software or documentation,
and we will have no liability or responsibility to you or to any entity or
person with respect to any claim for or damages for any indirect, special or
consequential damages in any manner arising out of, or connected with the sale,
the use or the anticipated use of the Program software and documentation
referred to herein, or for damage caused or alleged to be caused directly or
indirectly by the computer software or documentation furnished by us, including
but not limited to the interruption of service, loss of business or anticipated
profits or consequential damages resulting from the use or operation of the
software.
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If we are unable to cure material defects in the software or documentation
within a reasonable period, you have the option to terminate this agreement upon
written notice and receive a refund of all License fees paid by you prior to
such termination. Thereafter, the termination provisions of Section 15 will
apply.
WE SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, OR
CONDITIONS,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OR
CONDITION OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER
IMPLIED TERMS AREEXCLUDED.
PROGRAM SERVICES. We represent that each of our employees or representatives
assigned to perform marketing, technical support or data processing services
will have the proper skill, training and background so as to be able to perform
in a competent manner the services described in this agreement; provided,
however, you agree that we will not be responsible for any indirect, special or
consequential loss or damage, such as loss of anticipated revenues or other
consequential economic loss in connection with or arising out of any
unintentional breach of this agreement. Nor will we be liable for any errors in
judgment or mistakes that may be made in good faith when acting on your behalf.
Nor will we be liable for any delay in the performance of our duties caused by
strike, lawsuit, riot, civil disturbance, fire, shortage of supplies or
materials or any other cause reasonably beyond our control.
YOU HEREBY AGREE TO WAIVE AND RELEASE US FROM ANY CLAIM OR LIABILITY
FOR ERRORS OR MISTAKES
MADE IN GOOD FAITH OR FOR ANY SUCH CONSEQUENTIAL LOSS OR DAMAGE AS
SET FORTH IN THIS SECTION
SECTION 13. GENERAL LIMITATION OF LIABILITY. Notwithstanding the foregoing, you
acknowledge that data conversion is subject to likelihood of human and machine
errors, omissions, delays, and losses, including inadvertent mutilation of
documents, which may give rise to loss or damage. Accordingly, you agree that we
shall not be liable on account of any such errors, omissions, delays, or losses
unless caused by our gross negligence or willful misconduct. You are responsible
for adopting reasonable measures to limit your exposure with respect to such
potential losses and damage, including (without limitation) examination and
confirmation of results prior to use thereof, provision for identification and
correction of errors and omissions, preparation and storage of backup data,
replacement of lost or mutilated documents, and reconstruction of data. You are
also responsible for complying with all local, state, and federal laws
pertaining to the use and disclosure of any data and in connection with all
agreements you enter into with your customers. You acknowledge that any form of
agreement provided we provide that you may use with your customers is solely for
your reference; you are not obligated to use any such agreement. You further
acknowledge that we do not guarantee, and are not responsible for ensuring, that
any agreements supplied by us that you may enter into with your customers comply
with laws and regulations applicable to you. YOU ACKNOWLEDGE THAT YOU HAVE AN
INDEPENDENT RESPONSIBILITY TO CONSULT YOUR OWN LEGAL AND ACCOUNTING ADVISERS
WITH RESPECT TO LEGAL MATTERS, INCLUDING THE ENFORCEABILITY AND ACCOUNTING
TREATMENT OF ANY SUCH CUSTOMER AGREEMENTS, AND TO ADVISE YOUR CUSTOMERS TO
SIMILARLY CONSULT PROFESSIONALS WITH RESPECT THERETO. The cumulative liability
of us to you for all claims relating to the Program and arising out of this
agreement, including any cause of action sounding in contract, tort, or strict
liability, shall not exceed the total amount of all fees paid to us hereunder.
In no event shall we be liable for any loss of profits; any incidental, special,
exemplary, or consequential damages, whether foreseeable or unforeseeable; or
any claims or demands brought against you, even if we have been advised of the
possibility of such claims or demands. This limitation upon damages and claims
is intended to apply without regard to whether other provisions of this
agreement have been breached or have proven ineffective.
SECTION 14. DEFAULT; PROVISIONS FOR ALTERNATIVE DISPUTE RESOLUTION. In the event
that either you or we default in the performance of any obligation under this
agreement, and this default continues for a period of thirty (30) days after
written notice is given by the non-defaulting party, then the non-defaulting
party will have the right, at its option, to terminate this agreement by giving
written notice of such termination. Except as specifically provided otherwise,
such termination will not constitute a waiver of our rights to any sums due and
payable to us from you pursuant to the terms of this agreement.
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We and you further agree that any dispute arising between the parties, either
before or after a termination of this agreement, will be submitted either to
mediation, or to non-binding arbitration in accordance with the rules of the
American Arbitration Association, prior to the commencement of any legal action
or proceeding against the other party to this agreement.
SECTION 15. PROCEDURES UPON TERMINATION. Upon the expiration or termination of
this agreement for any cause, you agree to immediately discontinue the use of,
and return to us all material constituting the CashFlow Manager program,
including, but not limited to all trade names, trademarks, service marks,
copyrights, patents, computer software programs, manuals, materials, signs, and
forms of advertising indicative of the CashFlow Manager Program. You also agree
to allow us reasonable access to your personnel and facilities in order to
follow are standard software removal and audit procedures. If you fail or refuse
to comply with the provisions of this section, you agree to reimburse us for all
costs, including reasonable attorney's fees and other expenses incurred in
connection in the enforcement of this provision. In the event you terminate this
agreement, but elect to continue an accounts receivable financing program of a
nature similar to CashFlow Manager, you may be responsible for any OP Fee as set
forth above in Section 11, and you warrant that such replacement program will be
or has been developed without the use of any of our confidential or proprietary
information covered by this agreement. Furthermore, the provisions of Sections
2, 4, 8, 10, 11, 12, and 13 shall survive any termination of this agreement.
SECTION 16. REPRESENTATIONS AND WARRANTIES. The parties hereto each represent
and warrant to each other that (i) each party is a duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or chartering, (ii) the individual executing this agreement has
the legal right and authority to execute this agreement and to so bind the party
which he or she represents, (iii) each party has the full power, authority and
legal right to execute, deliver and perform this agreement, (iv) this agreement
has been duly authorized, executed and delivered by such party, and (v) this
agreement is the legal, valid, and binding obligation of such party, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting the rights of creditors generally, and subject to general
principles of equity.
SECTION 17. NO JOINT VENTURE. Nothing herein shall be construed to create a
partnership or joint venture between the parties.
SECTION 18. BINDING EFFECT. This agreement will be effective when executed by
one of our duly authorized officers and will benefit and be binding on you and
us, and your and our successors or assigns.
SECTION 19. GOVERNING LAW. This agreement will be deemed to have been made and
delivered in the State of Georgia. The validity, performance and all matters
relating to the interpretation and effect of this agreement will be governed by
the laws of the State of Georgia, without regard to conflict of laws rules
applied in the State of Georgia.
IN WITNESS WHEREOF, you and we have executed this agreement on the respective
dates set forth below, and is effective on the date accepted by us.
LICENSEE:
By: _______________________________ Date: Title:________________________
Its: _______________________________
LICENSOR ACCEPTANCE
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The foregoing agreement is hereby accepted and approved by the undersigned duly
authorized officer of TOWNE SERVICES, INC. on the _____ day of _______________,
2001.
TOWNE SERVICES, INC.
By: ____________________________________
Its:____________________________________