EXHIBIT 14.5
IN-PERSON PAYMENTS
ELECTRONIC PAYMENT SPECIALISTS
IPP OEM Agreement
This agreement, dated as of ________________, 2004 (the "Agreement"), is entered
into by and between _____________________________________ a ____________________
corporation whose principal place of business is _______________________________
__________________________________________________________ (the "OEM") and PP of
America, Inc., a New Jersey corporation, whose principal place of business is ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("IPP").
WHEREAS, IPP has developed a leading nationally recognized network of
neighborhood-based payment centers ("Payment Centers") that provide reliable and
safe electronic payment services and pre-paid telecommunication products to cash
paying customers utilizing its proprietary software (the "Services");
WHEREAS, the OEM has developed a leading nationally recognized network of Point
of Sale terminals (the "P05 Devices") that enables the marketing and sale of a
variety of financial products and services to customers utilizing its
proprietary software;
WHEREAS, in order to promote the expansion of IPP, IPP wishes to integrate
certain of its Services (the "Marketed Services") with the OEM's POS Devices,
subject to the terms and conditions of this Agreement, the Service Level
Standards, and the Marketing Plan (as defined in Article I hereof);
WHEREAS, in order to promote the expansion of the OEM, the OEM wishes to
integrate the Marketed Services into Its POS Devices, subject to the terms and
conditions of this Agreement, the Service Level Standards, and the Marketing
Plan;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Article I.
DEFINITIONS
"Agents" shall mean officers, directors, employees, affiliates,
representatives or agents;
"Agreement" shall have the meaning set forth in the preamble hereof;
"Assigned Retailer" shall have the meaning set forth in Section 5.1(b)
hereof;
"Business Day" means a day, other than a Saturday or Sunday, on which
commercial banks are not required or authorized to close in the State
of New Jersey;
"Commission and Fee Schedule" shall mean the commission and fee
schedule attached as Exhibit A hereto;
"Dispute" shall have the meaning set forth in Section 8.10 hereof;
"Exempt Products" shall have the meaning set forth In Section 4.6
hereof;
"IPP" shall have the meaning set forth in the preamble hereof;
"IPP Information" shall mean the IPP Intellectual Property and the
Joint Retailer List;
"IPP Intellectual Property" means all confidential, proprietary, or
business-related information of IPP, including, without limitation, the
following: (I) Trademarks; (ii) patents, patentable inventions,
discoveries, improvements, ideas, know-how, processes and computer
programs, software and databases (including source code); (iii) trade
secrets and the right to limit the use or disclosure thereof; (iv)
copyrights in all works, including software programs and mask works;
(v) domain names and websites; (vi) business contacts, transactions,
contracts, intellectual property, finances, personnel, products and
pricing, and client, customer or corporate affairs;
"IPP's Trademarks" shall mean the Trademarks identified in Exhibit E
hereto;
"Joint Retailer List" shall mean the identity of retailers that utilize
the OEM's P05 Devices and which are also PP Payment Centers or Assigned
Retailers;
"Marketed Services" shall have the meaning set forth in the preamble
hereof "Marketing Plan" shall mean the marketing plan attached as
Exhibit C hereto; "OEM" shall have the meaning set forth in the
preamble hereof;
"OEM Information" shall mean the OEM Intellectual Property and the
Joint Retailer List;
"OEM Intellectual Property" means all confidential, proprietary, or
business-related information of the OEM, including, without limitation,
the following: (i) Trademarks; (ii) patents, patentable inventions,
discoveries, improvements, ideas, know- how, processes and computer
programs, software and databases (including source code); (iii) trade
secrets and the right to limit the use or disclosure thereof; (iv)
copyrights in all works, including software programs and mask works;
(v) domain names and web sites; (vi) business contacts, transactions,
contracts, intellectual property, finances, personnel, products and
pricing, and client, customer or corporate affairs;
"OEM's Trademarks" shall mean the Trademarks identified in Exhibit D
hereto;
"Payment Center" shall have the meaning set forth in the preamble
hereof;
"Payment Center Agreement" shall mean the Payment Center Agreement
entered into by PP and IPP Payment Centers, along with all application
forms and agreements related thereto, and subject to modification by
IPP from time to time;
"Person" means any Individual, partnership, corporation, trust,
association, limited liability company, governmental agency or any
other entity;
"POS Devices" shall have the meaning set forth in the preamble hereof;
"Services" shall have the meaning set forth in the preamble hereof;
"Service Level Standards" shall mean the service level standards
attached as Exhibit D hereto;
"Term" shall have the meaning set forth in Section 7.1 hereof;
"Trademarks" shall mean trademarks and service marks (registered or
unregistered) and trade names, and all goodwill associated therewith;
and
"Transaction" shall mean a proposed or completed payment of a ▇▇▇▇ by a
customer using the Marketed Services;
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Article II.
REPRESENTATIONS AND WARRANTIES OF THE OEM
The OEM represents and warrants to PP as follows:
Section 2.1. Authority of the OEM. The OEM Is duly organized, validly existing,
and in good standing under the corporate laws of its Jurisdiction of formation.
The OEM has full corporate power and authority to execute, deliver and perform
this Agreement. The execution, delivery and performance by the OEM of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the part of the
OEM, and this Agreement constitutes the legal, valid and binding obligation of
the OEM enforceable in accordance with its terms, except as such enforcement may
be limited by applicable bankruptcy, insolvency, moratorium, or similar laws
from time to time in effect which affect creditors' rights generally, and by
legal and equitable limitations on the enforceability of specific remedies.
Article III.
REPRESENTATIONS AND WARRANTIES OF IPP
PP represents and warrants to the OEM as follows:
Section 3.1. Authority of IPP. IPP is duly organized, validly existing, and in
good standing under the corporate laws of the State of New Jersey. IPP has full
corporate power and authority to execute, deliver and perform this Agreement.
The execution, delivery and performance by IPP of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of the IPP, and this
Agreement constitutes the legal, valid and binding obligation of IPP enforceable
in accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, moratorium, or similar laws from time to time
in effect which affect creditors' rights generally, and by legal and equitable
limitations on the enforceability of specific remedies.
Article IV.
CERTAIN COVENANTS AND AGREEMENTS OF THE OEM
Section 4.1. Responsibilities. During the Term of the Agreement, the OEM shall
have the following obligations and responsibilities:
(a) Integration: develop and execute a technical integration plan,
jointly with IPP, designed to seamlessly integrate the Marketed Services with
the OEM's P05 Devices, which shall enable, without limitation, the following:
i. the programming of devices on the OEM's POS Devices
to accept IPP Transactions by displaying of a series
of screens with menu choices that permit (i) the
selection of a ▇▇▇▇▇▇, (ii) the entry of a customer
account name and number, and (iii) the entry of the
amount of a ▇▇▇▇ to be paid;
ii. the transmission of Transaction data to IPP for
authorization, and the receipt of an approval code
and tracking number from IPP for each such authorized
Transaction;
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iii. the receipt from a customer of a form of payment,
such as cash, credit card, or debit card;
iv. the receipt of confirmation from IPP and/or a
third-party payment processor that the total amount
of a Transaction has been collected or authorized;
and
v. the issuance of a printed receipt to a customer in
accordance with a standardized format specified by
PP.
(b) Enrollment:
i. enable retailers which are part of the OEM's POS
Devices to offer the Marketed Services to customers
through the OEM's P05 Devices by submitting to IPP a
copy of IPP's Payment Center Agreement signed by each
Assigned Retailer as well as all fees due to IPP
pursuant to the Payment Center Agreement, subject to
Section 5.1(b) hereof;
ii. arrange for the installation and maintenance of
software at each Assigned Retailer that will enable
Assigned Retailers to process Transactions on the
OEM's POS Devices in connection with the Marketed
Services; and
iii. train representatives of its Assigned Retailers on
the use and operation of the P05 Devices in regards
to offering the Marketed Services as well as all
policies and procedures with respect to the execution
and processing of Transactions in accordance with the
IPP training materials provided to the OEM.
(c) Marketing:
i. market and promote IPP's Services as a solution to
permit consumer ▇▇▇▇ payment by through the OEM's POS
Devices;
ii. define the suggested retail price of the Marketed
Services for each Assigned Retailer, and the
Transaction fee charged to the customer for certain
types of Transactions offered as part of the Marketed
Services, subject to the approval of IPP; and
implement the terms of the Marketing Plan, including,
without limitation, the following:
a. working in conjunction with IPP to implement
marketing initiatives;
b. including IPP in the OEM's public relations,
advertising, direct mail, seminars, lecture
invitations, public appearances, and trade
shows to promote joint services; and
c. joining in press releases regarding the role
of IPP in the OEM's Network;
(d) Customer Service: perform other duties and tasks as required by the
Service Level Standards;
(e) Information and Recordkeeping: keep adequate records relating to
all Transactions originated through the OEM's POS Devices, respond promptly to
any reasonable request for information made by PP which relates in any way to a
Transaction, and provide PP with access to its records and personnel which
relate in any way to a Transaction.
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(f) Expenses: pay any and all costs, expenses, and fees incurred by the
OEM in connection with the administration of, and the preparation, execution,
delivery and implementation of, this Agreement, the Service Level Standards, and
the Marketing Plan.
(g) Other Services: perform such other services as are ancillary or
incidental to the foregoing services and such further services as maybe agreed
to from time to time by IPP and the OEM.
Section 4.2. Compliance with, and Amendment of the Marketing Plan and Service
Level Standards.
(a) The OEM shall comply with all of the terms, conditions, and
provisions of the Marketing Plan and the Service Level Standards.
(b) IPP shall provide the OEM with ten (10) days' prior written notice
of any proposed amendment of the Marketing Plan or the Service Level Standards.
Subject to paragraph (c) below, such amendment or supplement shall become
effective at the conclusion of such ten (10) day period.
(c) Notwithstanding anything to the contrary contained in this
Agreement, if any proposed amendment or supplement of the Marketing Plan or the
Service Level Standards would materially increase the obligations or liabilities
of the OEM, without a concomitant benefit to the OEM, then: the OEM shall have
the option to notify IPP that it objects to the proposed form of amendment or
supplement to the Marketing Plan or the Service Level Standards, specifying the
manner in which such proposed amendment or supplement would materially increase
the obligations or liabilities of the OEM; and if prior to the effective date of
such proposed amendment or supplement to the Marketing Plan or the Service Level
Standards, IPP has not altered such proposed amendment or supplement to avoid a
material Increase in the obligations or liabilities of the Company, the OEM by
written notice to PP may object to the proposed amendment or supplement, in
which event the amendment or supplement shall not become effective against IPP;
provided, however, the OEM and IPP agree to use commercially reasonable efforts
to adopt an amendment or supplement that comes as close to the terms of the
proposed amendment or supplement as is reasonably practicable.
(d) In the event of a conflict between the terms of this Agreement and
the terms of the Marketing Plan or the Service Level Standards, the terms of
this Agreement shall govern. -
Section 4.3. Accuracy of Information. The OEM accepts sole responsibility for
the accuracy of the transmission of all data to IPP. IPP agrees that, except as
expressly set forth in this Agreement, the OEM assumes no liability for the
accuracy of the underlying data. Notwithstanding the foregoing, if the OEM
becomes aware of any fact which could cause a retailer that utilizes the OEM's
P08 Devices to fail to fulfill any of its obligations incurred pursuant to the
Payment Center Agreement or a Transaction processed thereunder, then the OEM
shall immediately disclose such fact to IPP.
Section 4.4. Confidentiality.
(a) The OEM shall keep confidential all IPP Information of which it may
become aware, whether or not relating to or arising out of this Agreement. The
Company shall use all reasonable and prudent efforts to protect and safeguard
the IPP Information from misuse, loss, theft, publication or the like and to
ensure that the OEM's Agents who receive any of the IPP Information shall do
likewise.
(b) The OEM shall transmit the PP Information only to the OEM's Agents
who are actively and directly participating in the performance of the OEM's
obligations hereunder, and who are informed of and who have agreed to comply
with the terms of this Agreement and who are instructed to make use of the IPP
Information only in a manner consistent herewith. The OEM shall be liable for
any breach of the terms of this Agreement by such OEM's Agents.
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(c) Upon the expiration of the Term, or the earlier termination of this
Agreement, the OEM shall immediately return or destroy (and confirm in writing
to IPP such fact) the IPP Intellectual Property, including all notes, copies,
reproductions, summaries, analyses, or extracts thereof, then In OEM's or the
OEM's Agents' possession, excluding this Agreement, and shall not retain any
copies, extracts or other reproductions in whole or in part of such material,
other than this Agreement. Such return or destruction shall not abrogate the
OEM's continuing obligations under this Agreement.
(d) In the event that the OEM is requested or required (by
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process) to disclose any of the IPP Information,
the OEM shall provide IPP with prompt written notice so that it may seek a
protective order or other appropriate remedy. In the event such protection or
other remedy is not obtained, the OEM shall exercise best efforts to obtain
assurance that confidential treatment will be accorded to such PP Information.
(e) Except in connection with the performance of its obligations under
this Agreement, the OEM shall not use or disclose the Joint Retailer List
without the express written permission of IPP.
Section 4.5. No Raid. During the Term of this Agreement and for two (2) years
thereafter, without the prior written consent of PP the OEM shall not attempt to
solicit or induce any Payment Center to initiate or continue a business
relationship with the OEM or any other Person which could reasonably be expected
to terminate or reduce the scope of such Payment Center's relationship with IPP;
provided, however, that this Section 4.5 shall not prohibit the OEM from
maintaining business relationships with persons or entities who have or had a
relationship with IPP provided that such business relationships do not otherwise
violate the provisions of this Section 4.5.
Section 4.6. Non-Compete. During the Term of this Agreement, without the prior
written consent of IPP, the OEM shall not represent, provide any services
related to, or distribute any products or services that are in competition with,
the Marketed Services or IPP's Services. The OEM shall also refrain from
representing, providing any non-competitive services or distributing any
non-competitive products or services for a competitor of IPP, if requested to do
so by IPP, provided that IPP's request is reasonable, taking into account all of
the facts and circumstances. Notwithstanding the foregoing, the OEM may continue
to represent and distribute the following products and services ("Exempt
Products") so long as the OEM represents or distributes such products or
services as of the effective date of this Agreement:
Section 4.7. Intellectual Property. The OEM acknowledges and agrees that PP is,
and IPP or its successors or assigns shall remain, the owner of the IPP
Intellectual Property. The OEM shall acquire no ownership interest in the PP
Intellectual Property through this Agreement or otherwise and all use by the OEM
of the PP Intellectual Property shall inure solely to the benefit of PP. The OEM
agrees that it shall:
(a) cooperate fully with IPP, at IPP's expense, in efforts to obtain,
perfect and enforce IPP's rights in the IPP Intellectual Property;
(b) not, directly or indirectly, contest or assist any other party in
contesting the validity or enforceability or IPP's ownership of the PP
Intellectual Property;
(c) not do or permit to be done any action or thing which will in any
way impair or damage IPP's rights in and to the IPP Intellectual Property;
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(d) prior to issuing documents or materials including the IPP
Trademarks, obtain IPP's approval, which approval shall not be unreasonably
withheld;
(e) use the IPP Intellectual Property only in the form and manner
approved by IPP or in such other form or manner as approved in advance by IPP
which approval shall not be unreasonably withheld; and
(f) prior to creating or distributing documents or materials including
the IPP Intellectual Property or selling products or services embodying the PP
Intellectual Property, obtain PP's approval, which approval shall not be
unreasonably withheld.
Section 4.8. IPP Materials. Immediately upon the end of the Term of this
Agreement, the OEM shall return to PP all advertising, marketing and promotional
materials related to PP that are in the OEM's possession. The OEM's right to use
such materials or the IPP Trademarks shall cease immediately upon the expiration
or termination of this Agreement.
Section 4.9. Fees. In connection with the execution of this Agreement, the OEM
may elect to (i) arrange for payment of fees due IPP pursuant to the Payment
Center Agreement in accordance with Section 4.1 (b)(1) hereof or (ii) to pay
such fees in advance in accordance with the fee schedule set forth in Exhibit A
hereto. All fees are subject to change in IPP's sole discretion.
Section 4.10 Communications with Joint Retailers; and Others. The OEM shall not,
without the prior written consent of IPP:
(a) conduct marketing, sales, promotional or similar campaigns directed
specifically to, or reasonably calculated to be specifically received by Persons
on the Joint User List for a ▇▇▇▇ payment service;
(b) refer to IPP in any of its sales, marketing, promotional, or
similar literature except as set forth in the Marketing Plan.
Article V.
CERTAIN COVENANTS AND AGREEMENTS OF IPP
Section 5.1 Responsibilities. During the Term of the Agreement, IPP shall:
(a) Integration: develop and execute a technical integration plan,
jointly with the OEM, designed to seamlessly integrate the Marketed Services
with the OEM's POS Devices, which shall enable, without limitation:
i. the receipt of Transactions from the OEM's P05
Devices;
ii. the transmission of an electronic authorization code
to the OEM's POS Devices for each Transaction; and
iii. the transmission of a reconciliation report to the
OEM's POS Devices at the conclusion of each
processing cycle which includes details of each
Transaction as well as the total amount of funds to
be collected by IPP from each Assigned Retailer.
(b) Approval: approve, In its sole discretion, applications submitted
pursuant to Section 4.1(b)(1) to enable the offering of the Marketed Services to
customers through the OEM's POS Devices (each such approved applicant, an
"Assigned Retailer");
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(c) Processing: For each Assigned Customer and in accordance with the
Payment Center Agreement and IPP's policies and procedures, PP shall process all
approved Transactions that are received from the OEM's POS Devices, Including
arranging for the debiting of the bank accounts of Assigned Retailers and
remitting such funds to the appropriate billers.
(d) Marketing:
i. implement the terms of the Marketing Plan;
ii. support individual OEM promotions that will enhance
the usage of the Marketed Services, which may include
marketing materials, cooperative advertising, and
other marketing incentives;
iii. issue press releases regarding material developments
in IPP's relationship with the OEM.
(e) Customer Service: provide customer service for Transactions
executed through the OEM's POS Devices in accordance with the Service Level
Standards;
(f) Expenses: pay any and all costs, expenses, and fees incurred by IPP
in connection with the administration of, and the preparation, execution,
delivery and implementation of, this Agreement, the Service Level Standards, and
the Marketing Plan; and
(g) Other Services: perform such other services as are ancillary or
incidental to the foregoing services and such further services as may be agreed
to from time to time by PP and the OEM.
Section 5.2. Remuneration. On a calendar monthly basis, IPP shall pay to the OEM
a commission based on net Transaction fees received by IPP for Transactions
conducted at the Assigned Retailers. The commission schedule is set forth in
Exhibit A hereto. The OEM shall be entitled to such remuneration on all
Transactions (i) completed during the Term of this Agreement, whether or not the
transaction fees were received by, or the remuneration was due from, IPP prior
to the end of the Term of this Agreement, and (u) completed subsequent to the
Term of this Agreement so long as (a) said transactions occurred at Assigned
Retailers obtained by PP through OEM's efforts and services provided during the
Term of this Agreement, (b) the OEM maintains a monthly minimum of either 500
Assigned Retailers or 50,000 IPP Transactions conducted at the Assigned
Retailers, and (c) this Agreement has not been breached or otherwise terminated
for cause pursuant to Section 7.1(b), 7.1(c) or 7.1(d). In the event that IPP
elects that all obligations of the parties with respect to the processing of
Transactions shall continue for a period in excess of the Term of this Agreement
in accordance with Section 7.2 hereof, then the OEM shall also be entitled to
remuneration on all Transactions completed during such period.
Section 5.3. Reporting. On a monthly basis, IPP shall provide to the OEM a list
of all of its Assigned Retailers and a record of the number IPP Transactions
completed at the Assigned Retailers during the monthly period.
Section 5.4. Exempt Products. Without obtaining the prior approval of the OEM,
IPP will not offer for sale to any Assigned Retailer any products or services
which compete with the Exempt Products.
Section 5.5. System Operation and Modifications. (PP expressly reserves the
right to (i) add, remove or sell additional payments, products and services to
or from the IPP Services and the Marketed Services at any future date provided
that such actions do not conflict with the terms of this Agreement and (ii) to
modify its policies and procedures with respect to the processing of
Transactions.
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Section 5.6. Accuracy of Information. IPP accepts sole responsibility for the
accuracy of the transmission of all data to the OEM. The OEM agrees that, except
as expressly set forth in this Agreement, IPP assumes no liability for the
accuracy of the underlying data.
Section 5.7. Confidentiality.
(1) IPP shall keep confidential all OEM Information of which it may
become aware, whether or not relating to or arising out of this Agreement. IPP
shall use all reasonable and prudent efforts to protect and safeguard the OEM
Information from misuse, loss, theft, publication or the like and to ensure that
IPP's Agents who receive any of the OEM Information shall do likewise.
(g) IPP shall transmit the OEM Information only to IPP's Agents who are
actively and directly participating in the performance of the IPP's obligations
hereunder, and who are informed of and who have agreed to comply with the terms
of this Agreement and who are instructed to make use of the IPP Information only
in a manner consistent herewith. PP shall be liable for any breach of the terms
of this Agreement by IPP's Agents.
(h) Upon the expiration of the Term, or the earlier termination of this
Agreement, IPP shall immediately return or destroy (and confirm in writing to
IPP such fact) the OEM Intellectual Property, including all notes, copies,
reproductions, summaries, analyses, or extracts thereof, then in IPP's or IPP's
Agents' possession, excluding this Agreement, and shall not retain any copies,
extracts or other reproductions in whole or in part of such material, other than
this Agreement. Such return or destruction shall not abrogate the PP's
continuing obligations under this Agreement.
(i) In the event that IPP is requested or required (by interrogatories,
requests for information or documents, subpoena, civil investigative demand or
similar process) to disclose any of the OEM Information, (PP shall provide the
OEM with prompt written notice so that it may seek a protective order or other
appropriate remedy. In the event such protection or other remedy is not
obtained, IPP shall exercise best efforts to obtain assurance that confidential
treatment will be accorded to such OEM Information.
(j) Except in connection with the performance of its obligations under
this Agreement, PP shall not use or disclose the Joint Retailer List without the
express written permission of the OEM.
Section 5.8. Intellectual Property. IPP acknowledges and agrees that the OEM is,
and the OEM or its successors or assigns shall remain, the owner of the OEM
Intellectual Property. IPP shall acquire no ownership interest in the OEM
Intellectual Property through this Agreement or otherwise and all use by IPP of
the OEM Intellectual Property shall inure solely to the benefit of the OEM. IPP
agrees that it shall:
(a) cooperate fully with the OEM, at the OEM's expense, in efforts to
obtain, perfect and enforce the OEM's rights in the OEM Intellectual Property;
(b) not, directly or indirectly, contest or assist any other party in
contesting the validity or enforceability of the OEM's ownership of the OEM
Intellectual Property;
(c) not do or permit to be done any action or thing which will in any
way impair or damage the OEM's rights in and to the OEM Intellectual Property;
(d) prior to issuing documents or materials including the OEM
Trademarks, obtain the OEM's approval, which approval shall not be unreasonably
withheld;
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(e) use the OEM Intellectual Property only in the form and manner
approved by the OEM or in such other form or manner as approved in advance by
the OEM which approval shall not be unreasonably withheld; and
(h) prior to creating or distributing documents or materials including
the OEM Intellectual Property or selling products or services embodying the OEM
Intellectual Property, obtain the OEM's approval, which approval shall not be
unreasonably withheld.
Section 5.9. No Raid. During the Term of this Agreement and for two (2) years
thereafter, without the prior written consent of the OEM, PP shall not solicit
or induce or attempt to solicit or induce any Assigned Retailer to initiate or
continue a business relationship with IPP or any other Person which could
reasonably be expected to terminate reduce the scope of such Assigned Retailer's
relationship with the OEM; provided, however, that this Section 5.9 shall not
prohibit the IPP from maintaining business relationships with persons or
entities who have or have had a relationship with IPP provided that such
business relationships do not otherwise violate the provisions of this Section
5.9.
Section 5.10 Communications with Joint Retailers; and Others. IPP shall not,
without the prior written consent of OEM:
(a) conduct marketing, sales, promotional or similar campaigns directed
specifically to, or reasonably calculated to be specifically received by Persons
on the Joint User List for a point of sale based financial services processor,
except in connection with the offering of the Marketed Services or PP's
Services; or
(b) refer to the OEM in any of its sales, marketing, promotional, or
similar literature except as set forth in the Marketing Plan.
Article VI.
LICENSE GRANT
Section 6.1 OEM Grant. Subject to the terms of this Agreement, the OEM grants
IPP a limited, non-exclusive license during the Term to: (A) use the OEM's
Trademarks identified in Exhibit D on marketing materials In connection with the
joint promotion of the Marketed Services as further detailed in the Marketing
Plan. All use of the OEM's Trademarks hereunder shall inure to the benefit of
the OEM. As between PP and the OEM, the OEM owns exclusively all right, title
and interest in and to the OEM's Trademarks throughout the world in perpetuity.
Section 6.2 IPP Grant. Subject to the terms of this Agreement, IPP grants the
OEM a limited, non-exclusive license during the Term to: (A) use PP's Trademarks
identified in Exhibit E on marketing materials in connection with the joint
promotion of the Marketed Services as further detailed in the Marketing Plan.
All use of the IPP's Trademarks hereunder shall inure to the benefit of IPP. As
between IPP and the OEM, IPP owns exclusively all right, title and interest in
and to IPP's Trademarks throughout the world in perpetuity.
Article VII.
TERMINATION
Section 7.1. Termination. Unless terminated earlier pursuant to the terms of
this Agreement, the term of this Agreement shall be for two (2) years from the
date hereof, and shall automatically renew for successive one year terms
thereafter, unless terminated by either party upon written notice to the other
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party at least ninety (90) calendar days prior to the end of the then expiring
term (the "Term"). This agreement and the transactions contemplated hereby may
be terminated in any of the following ways prior to the end of the Term:
(a) by the mutual written consent of PP and the OEM;
(b) by either party, if (I) any proceeding is commenced or any petition
is filed seeking liquidation, reorganization or other relief under any federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect in respect of the other party, or (fl) a receiver, trustee,
custodian, sequestrator, conservator or similar official is appointed for the
other party;
(c) by IPP, if in IPP's sole discretion, (i) the OEM ceases to conduct
its operations in the normal course of business;
(ii) the OEM does not fulfill its obligations under Article IV
of this Agreement, including complying with the Service Level Standards
and the terms of the Marketing Plan; or
(d) by either party, upon thirty (30) days written notice if the other
party to this Agreement breaches any term of this Agreement and fails to cure
such breach in such 30-day period.
Section 7.2 Effect of Termination. Upon the expiration of the Term, including in
the event this agreement is terminated pursuant to Section 7.1 o all further
obligations of the parties hereunder shall terminate, except for the obligations
set forth in Sections 4.4, 4.5, 4.6, 4.8, 5.7, 5.9 and this Section 7.2, and
except that nothing in this Section 7.2 shall relieve any party hereto of any
liability for breach of any of the covenants, agreements, representations, or
warranties contained in this Agreement prior to such termination.
Notwithstanding the foregoing, upon termination of this agreement PP shall have
the right to elect all obligations of the parties with respect to the processing
of Transactions at then-existing Assigned Retailers, including PP's obligation
to pay the OEM commissions on such Transactions in accordance with Section 5.2,
shall continue for a period of to two years.
Article VIII.
MISCELLANEOUS
Section 8.1. Set-Off. Notwithstanding the terms of Section 5.2 hereof or
anything else contained in this Agreement and in addition to other remedies
contained in Section 8.13 hereof, PP shall have the right to withhold any
payments owed to the under this Agreement, upon thirty (30) days written notice
if PP reasonably determines that the OEM has breached the terms this Agreement
and the OEM has failed to cure such breach in such 30-day period. IPP shall have
the right to continue to withhold payment until all such breaches are cured or
waived. Any amounts previously withheld pursuant to this Section 8.1 shall be
paid to the VAR when the breaches are cured or waived.
Section 8.2. Assignment and Parties in Interest
(a) Neither this Agreement nor any of the rights, duties, or
obligations of any party hereunder may be assigned or delegated (by operation of
law or otherwise) by either party hereto except with the prior written consent
the other party hereto, which consent shall not be unreasonably withheld.
(b) This Agreement shall not confer any rights or remedies upon any
person or entity other than the parties hereto their respective permitted
successors and assigns.
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Section 8.3. Directly or Indirectly. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
Section 8.4. Paragraph and Section Headings. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
Section 8.5. Notices.
(a) All communications under this Agreement shall be in writing and
shall be delivered by hand or facsimile or mailed by overnight courier or by
registered mail or certified mail, postage prepaid:
(i) if to IPP, at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(facsimile (▇▇▇) ▇▇▇.▇▇▇▇), marked for the attention of the General
Counsel, or at such other address as PP might have furnished in
writing, or
(ii) if to the OEM, at _________________________ (facsimile),
marked for the attention of __________ or at such other address as the
OEM might have furnished in writing.
(b) Any notice so addressed shall be deemed to be given: if delivered
by hand or facsimile1 on the date of such delivery or if not a Business Day on
the next succeeding Business Day; if sent by pre-paid, next day courier service
on the first Business Day following the date of such mailing; and if mailed by
registered or certified mail, on the third Business Day after the date of such
mailing.
Section 8.6. Successors and Assigns. This Agreement shall Inure to the benefit
of and be binding upon the permitted successors and assigns of each of the
parties.
Section 8.7. Entire Agreement, Amendment and Waiver. This Agreement constitutes
the entire understandings of the parties hereto and supersedes all prior
agreement or understandings of the parties hereto with respect to the subject
matter hereof. This Agreement may be amended, and the observance of any term of
this Agreement may be waived with (and only with) the written consent of each of
IPP and the OEM.
Section 8.8. Severability. In the event that any part or parts of this Agreement
shall be held illegal or unenforceable by any court or administrative body of
competent jurisdiction, such determination shall not effect the remaining
provisions of this Agreement which shall remain in full force and effect.
Section 8.9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
Section 8.10. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey without regard to
conflicts of laws principles thereof. With respect to any dispute, controversy
or claim arising out of or relating to this Agreement or its breach,
interpretation, termination, or validity (each, a "Dispute"), IPP and the OEM
hereby consent to the exclusive jurisdiction of the state and federal courts of
New Jersey and further consent that any process or notice of motion or any
application to any such court may be served outside of New Jersey, certified
mail, return receipt requested.
Section 8.11. LIMITATION OF LIABILITY. THE LIABILITY OF IPP TO THE OEM OR ANY
THIRD PARTY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH IPP SERVICES, THE
MARKETED SERVICES, OR THIS AGREEMENT SHALL BE EXPRESSLY LIMITED TO THE FACE
VALUE OF ANY APPLICABLE TRANSACTION. IN NO EVENT SHALL PP BE LIABLE FOR LOST
12
PROFITS OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES HOWEVER ARISING,
INCLUDING THROUGH THE NEGLIGENCE OF IPP, ITS PARENT, SUBSIDIARIES, AFFILIATES,
OFFICERS, DIRECTORS OR EMPLOYEES.
Section 8.12. Indemnification. The OEM agrees to indemnify and hold IPP, its
parent, subsidiaries, affiliates, officers, directors and employees harmless
from any claim or demand (including attorneys' fees) made or incurred by any
third party due to or arising out of the OEM's breach of this Agreement, or the
OEM's violation of any law or the rights of a third party relating to the use of
IPP Services or the Marketed Services.
Section 8.13. Specific Performance and Attorney's Fees. OEM agrees that the
services rendered to IPP pursuant to this Agreement are of a special and unique
character and hence IPP cannot be reasonably or adequately compensated in
monetary damages for any breach of this agreement. Without limiting or waiving
in any respect any rights or remedies of IPP under this Agreement now or
hereinafter existing at law or in equity or by statute, IPP shall be entitled to
seek specific performance of the obligations to be performed by the OEM in
accordance with the provisions of this Agreement, as well as an award of all
reasonable counsel fees incurred to prevent a breach and to secure enforcement
hereof.
Section 8.14. Relationship of Parties. The OEM is an independent contractor
rather than an employee, and will be treated as such for federal, state or local
tax purposes with respect to services rendered under this Agreement. IPP shall
not withhold income taxes, social security taxes, disability, workers
compensation or unemployment insurance payments, or any other assessments or
taxes from any commissions earned by the OEM. It is understood that the OEM and
the OEM's Agents are in no way the legal representatives or agents of IPP for
any purpose and have no right or authority to assume or create, in writing or
otherwise, any obligation of any kind expressed or otherwise in the name or on
behalf of IPP. IPP reserves the right to determine in its sole discretion the
acceptability of any transaction or any condition proposed by any Assigned
Retailer.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its officers hereunto duly authorized,
all as of the day and year first above written.
PP of America, Inc.
By:
OEM:
By:
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Name:
Title:
IPP of America, Inc. o ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Initial
13
▇▇▇▇▇▇ Beaumont In Person Payment
Distributor Commission Schedule
A. For certain Payment Transactions, the ▇▇▇▇▇▇ Beaumont in conjunction
with the Assigned Retailer may set the retail transaction fee between $1.00 and
$5.00, subject to the approval of ▇▇▇▇▇▇ Beaumont. On a calendar monthly basis,
▇▇▇▇▇▇ Beaumont shall pay the Distributor a commission based on net transaction
fees received by ▇▇▇▇▇▇ Beaumont for transactions conducted at the Assigned
Retailers in accordance with the following rate schedule:
Retailer Distributor
Monthly Volume Commission Commission
0-99payments 25% 6%' --2j
100--299 30% 6%
300--999 40% 6% ,
1,000-- 1,999 50% 6% ( The
2,000 + 55% 6% )
B. For certain Payment Transactions, only ▇▇▇▇▇▇ Beaumont can set the
retail Transaction fee. In such cases, the Distributor shall receive $0.15 for
each Transaction. The Assigned Retailer shall receive $0.50. ▇▇▇▇▇▇ Beaumont
shall receive the remainder. Following are some examples.
Transaction Fee Retailer Distributor
Charged by Assigned Retailer Commission
$5.00 or higher $1.50 6%
$3.95 or higher $1.50 6% ,...
$2.00 or higher $1.00 . 6%
$1.50 or higher $0.50 6% (, L..\ 7o
$1.00 or higher $0.25 6%
C. For Stored Value Load Transactions, ▇▇▇▇▇▇ Beaumont will establish
the load price that has been negotiated with the Card Processor. The Distributor
shall receive commissions based on the following.
Transaction Fee Retailer Distributor
Charged by Assigned Retailer Commission
$4.95 $3.00 $0.15 ....,. )4A- B
$3.95 $3.00 $0.05 -
Fee Schedule for Retail Locations
Product Version Services Distributor Price Suggested Sell Price
▇▇▇▇▇▇ Beaumont Blue Wireless Payments $299 N $699
Wireless Coupons "\.
Prepaid MasterCard Loads
Dish/Direct TV Payments
▇▇▇▇▇▇ Beaumont Gold All the above $399 pcLA12 $799 Regional Electric,
Water, Gas, Cable, Telecom, Credit Card Payments 1.
▇▇▇▇▇▇ Beaumont charges all online agents a $4.95 monthly service fee..
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EXHIBIT A
COMMISSION AND FEE SCHEDULE
IN-PERSON PAYMENTS
ELECTRONIC PAYMENT SPECIALISTS
Commission Schedule
A. For certain Payment Transactions, the OEM in conjunction with the
Assigned Retailer may set the retail transaction fee between $1.00 and $5.00,
subject to the approval of IPP. On a calendar monthly basis, IPP shall pay the
VAR a commission based on net transaction fees received by IPP for transactions
conducted at the Assigned Retailers in accordance with the following rate
schedule:
Retailer OEM
Monthly Volume Commission
0-99 payments 25% 10%
100--299 30% 10%
300--999 40% 10%
1,000--1,999 50% 10%
2,000 + 55% 10%
B. For certain Payment Transactions, only PP can set the retail
Transaction fee. In such cases, the OEM shall receive $0.25 for each
Transaction. The Assigned Retailer shall receive $0.50. PP shall receive the
remainder. Following are some examples.
Transaction Fee Retailer OEM
Charged by Assigned Retailer Commission
$5.OO or higher Wi O{ $1.50 10%
$3.95 or higher $1.50 10%
$2.00 or higher $1.00 10%
$1.50 or higher $0.50 10%
$1.00 or higher $0.25 10%
C. For Commissions on the sale of prepaid wireless electronic coupons
sold through IPP Online ("EPIN Coupons") shall be paid at the rate of 1% of the
face value of EPIN Coupons sold at the Assigned Retailers.
Fee Schedule
Product Version Services OEM Price OEM Prepakl Price
IPPOnline Blue Wireless Payments $199 $99
Wireless Coupons
Prepaid MasterCard Loads
Dish/Direct TV Payments
IPPOnline Gold All of the above $299 $199
Regional Electric, Water, Gas, Cable,
Telecom, Credit Card Payments
OEM may purchase
IPP charges all online agents a $4.95 monthly service fee.
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EXHIBIT B
SERVICE LEVEL STANDARDS
IN-PERSON PAYMENTS ELECTRONIC PAYMENT SPECIALISTS
[To follow.]
16
MARKETING PLAN
IN-PERSON PAYMENTS
ELECTRONIC PAYMENT SPECIALISTS
[To follow.]
17
OEM'S TRADEMARKS
IN-PERSON PAYMENTS
ELECTRONIC PAYMENT SPECIALISTS
[To follow.]
18
IPP'S TRADEMARKS
IN-PERSON PAYMENTS
ELECTRONIC PAYMENT SPECIALISTS
[To follow.]
19