1
EXHIBIT 10.2
================================================================================
FORM OF DOMESTIC BANK AGREEMENT
INDEPENDENT SALES ORGANIZATION AGREEMENT
BETWEEN
ORBIS DEVELOPMENT, INC. (ISO)
AND
[NAME OF DOMESTIC BANK]
================================================================================
2
TABLE OF CONTENTS
PAGE NO.
--------
I. Definitions............................................................................................1
II. ISO's Obligations.....................................................................................2
2.1 Responsibilities of ISO.......................................................................2
2.2 Merchant Losses...............................................................................3
2.3 Audits........................................................................................3
2.4 Information...................................................................................4
2.5 Ownership of Merchant Relationships/Agreements................................................4
III. BANK's Responsibilities..............................................................................4
3.1 BANK's Responsibilities.......................................................................4
IV. Settlement and Payment................................................................................4
4.1 Clearing Account..............................................................................4
4.2 Merchant Fees.................................................................................4
4.3 BANK Fees.....................................................................................4
4.4 Transfer Account..............................................................................5
4.3 Settlement Procedures.........................................................................5
V. Third Party Requirements...............................................................................5
5.1 Visa/MasterCard Requirements..................................................................5
VI. Representations and Warranties and Confidentiality....................................................6
6.1 Representations and Warranties................................................................6
6.2 Representations and Warranties Regarding Merchants............................................6
6.3 Confidentiality...............................................................................7
VII. Indemnification.......................................................................................7
VIII. Term, Termination, Default...........................................................................8
8.1 Term..........................................................................................8
8.2 Termination...................................................................................8
8.3 Default.......................................................................................8
8.4 Certain Post-Termination Rights...............................................................8
IX. Names and Trademarks..................................................................................9
9.1 Names.........................................................................................9
9.2 Visa/MasterCard Trademarks....................................................................9
X. General................................................................................................9
10.1 Assignability; Sale or Merger of the Parties.................................................9
10.2 Notice......................................................................................10
10.3 Master Agreement............................................................................10
10.4 Entire Understanding, Amendment.............................................................10
10.5 Severability................................................................................10
10.6 No Waiver of Rights.........................................................................10
10.7 Successors and Assigns......................................................................10
10.8 Applicable Law..............................................................................10
10.9 Independent Business Entities...............................................................10
10.10 Construction...............................................................................11
10.11 Force Majeure..............................................................................11
10.12 Survival...................................................................................11
3
INDEPENDENT SALES ORGANIZATION AGREEMENT
This Independent Sales Organization Agreement (Agreement) is made on
___________________, 2001 by and between ORBIS DEVELOPMENT, INC, a Nevada
corporation with offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
(ISO), and Domestic Bank, a national banking association with offices at
[ADDRESS OF DOMESTIC BANK] (BANK).
RECITALS
BANK is a member of Visa and MasterCard. ISO markets credit and debit card
processing services to merchants. BANK wishes ISO to act as its agent in
providing merchant services to Merchants, in respects consistent with this
agreement. ISO desires to provide to those merchants certain services relating
to credit card processing through BANK. Therefore, the parties agree as follows:
I. DEFINITIONS
The following terms when used in this Agreement will have the meanings set forth
in this Section:
ACTIVE ACCOUNT shall mean a Merchant from which a monthly fee(s) for processing
is collected.
ASSOCIATION means Visa, MasterCard, and any successor organization.
CHARGEBACK means a transaction that has been presented to either the cardholder
or the issuer of the Credit Card and for which payment to BANK has been refused
or reversed in accordance with the Rules.
CLEARING ACCOUNT shall mean an account maintained by BANK at a Federal Reserve
Bank or any other institution selected by BANK for the purpose of processing
credit card transactions for Approved Merchants pursuant to Merchant Agreements
and this Agreement.
CONFIDENTIAL INFORMATION means information owned by each party including, but
not limited to, technical or nontechnical data, a formula, pattern, compilation,
program, device, method, technique, parts list, schematic, drawing, process,
financial data, or list of actual or potential customers or suppliers which: (I)
derives economic value, actual or potential, from not being generally known to
other persons who can obtain economic value from its disclosure or use; and (ii)
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy or confidentiality.
CREDIT CARD means a valid and unexpired card issued by, and bearing the symbols
of, Visa or MasterCard, Diners, Card ▇▇▇▇▇▇▇, Discover, American Express and
certain other private label users that may be identified from time to time.
CREDIT POLICIES AND PROCEDURES means the criteria and procedure by which ISO
determines the creditworthiness and suitability of the Merchant as approved by
the Bank.
EVENT OF DEFAULT means the events listed in Section 8.3.
MASTERCARD means MasterCard International, Inc.
3
4
MERCHANT means a business that has entered into a Merchant Agreement and to
which ISO provides services under this Agreement.
MERCHANT AGREEMENT means the written contracts required by BANK to be entered
into by an ISO Merchant to enable the Merchant to participate in the Merchant
Program.
MERCHANT LOSS means any loss incurred by BANK for any reason attributable to a
Merchant, including but not limited to losses due to the fraudulent practices of
a Merchant and uncollected Merchant fees.
MERCHANT PROGRAM means the package of services offered by BANK which enables a
Merchant to make sales to persons presenting credit cards and which permits the
Merchant to present Sales Drafts to BANK for payment and processing.
RETRIEVAL means the production of the original, or an acceptable copy of, a
Sales Draft, credit voucher or other supporting documentation by a Merchant.
RULES means the written regulations and procedures issued by Visa and
MasterCard, as amended from time to time.
SALES DRAFT means the written form or electronic format used in consummating
credit card sales transactions charged to the account of a Merchant's customer.
TRANSACTION means any event involving the purchase by a cardholder of goods or
services from a Merchant, by use of a Credit or Debit Card.
TRANSFER ACCOUNT shall mean an account at BANK that is established and
maintained by, and in the name of, ISO to allow BANK to deposit funds over and
above fees due BANK.
VISA means Visa U.S.A., Inc.
II. ISO'S OBLIGATIONS
2.1 RESPONSIBILITIES OF ISO: ISO will perform the following
responsibilities:
A. Locate, investigate and submit Merchants qualified for Merchant
Program participation consistent with agreed upon underwriting
standards stated in the Credit Policies and Procedures.
B. Assist Merchants in completing all documentation required for the
Merchant Program, perform site inspections, and evaluate potential
Merchants.
C. Train Merchants on the procedures and Rules necessary to
participate in the Merchant Program.
D. Input all data necessary to set up new Merchants, and maintain
Merchants' account data.
E. Respond to Merchants' inquiries.
F. Handle all Chargebacks and Retrievals in accordance with the
Rules.
4
5
G. Sell or lease to Merchants' point of sale devices and other
equipment necessary to participate in the Merchant Program, and
install and train Merchants on the use of point of sale devices
and other equipment.
H. Sell, distribute and deliver all Merchant supplies.
I. Provide access to Merchant data.
J. Withhold or redirect settlement funds, as required by Visa or
MasterCard.
K. Submit to BANK Merchant fees to be charged as determined by ISO.
Merchant fees will be lawful under all applicable laws and
regulations.
L. Establish Credit Policies and Procedures as approved by BANK. Any
changes in Credit Policies and Procedures shall be subject to
approval by BANK. BANK shall not unreasonably withhold approval of
the Credit Policies and Procedures created and submitted by ISO.
ISO and BANK agree that they will not in establishing and
approving Credit Card Policies and Procedures discriminate against
any person or business as prohibited in applicable federal and
state laws and regulations that have the force of law.
2.2 MERCHANT LOSSES. All Merchant Losses (charge backs) incurred by BANK
for any reason, unless such loss is proximately caused by the
negligence of BANK, will be borne by ISO.
ISO will establish a reserve account to fund the payment of transaction
charge backs with an initial contribution of [STATE DOLLAR AMOUNT]
($,000.00) prior to processing any Transactions with BANK and will
thereafter contribute at the rate of [STATE RATE] basis points (.000x)
multiplied by the dollar volume of Visa or MasterCard sales drafts
processed by Merchants until the reserve account is equal to [STATE
DOLLAR AMOUNT]($,000.00). ISO will at all times after 90 days of the
contract's inception or prior to the processing of the first
Transaction with BANK, whichever comes first, maintain a minimum
balance of [STATE DOLLAR AMOUNT]($,000.00) balance in the reserve
account. BANK is authorized to deduct from the monies due ISO the
amounts specified herein and to place those monies in the reserve
account in accordance with this paragraph. Monies may be deducted from
the reserve account only for the payment of Merchant charge backs. BANK
will notify ISO of any deductions from the reserve account and
deductions will be taken from ISO's reserve account only if funds are
not available from Transfer Account. ISO shall have sixty (60) days in
which to eliminate any charge back before BANK will deduct the amount
of the charge back from ISO's reserve account. This reserve account
will be an interest bearing account, with interest paid based upon the
rate paid on the BANK basic checking account. ISO hereby grants BANK a
security interest in the Reserve Account to secure all of ISO's
obligations to BANK under this Agreement. This Agreement shall serve as
the Security Agreement and MSI agrees to execute and deliver to BANK
all financing statements and other documents determined by BANK to be
necessary or appropriate for the perfection and maintenance of such
security interest.
2.3 AUDITS. BANK, Visa, MasterCard and regulatory agencies may at any time
conduct financial and procedural audits of ISO to confirm compliance
with this Agreement, the Rules, applicable law and the safety and
soundness under which ISO performs its duties hereunder. ISO will
promptly supply such auditors with information requested by them. BANK
will have the right to have an independent audit of ISO's operations,
at BANK'S expense. ISO shall cooperate with BANK and its auditors in
the performance of all audits and shall not be entitled to
reimbursement from BANK for its personnel.
5
6
2.4 INFORMATION. ISO shall provide the Merchant records and information
required by BANK in its ISO Credit Policy and Procedures which is
incorporated herein by reference. ISO will make available Merchant
records as soon as possible, but no later than seven (7) business days
from the receipt of any request from BANK or any regulatory agency. ISO
shall provide BANK quarterly financial statements within thirty (30)
days after the end of each calendar quarter.
2.5 OWNERSHIP OF MERCHANT RELATIONSHIP/AGREEMENTS. All right, title and
interest in the Merchant relationship/Agreements is owned by ISO.
III. BANK'S RESPONSIBILITIES
3.1 BANK'S RESPONSIBILITIES. BANK will:
A. Accept ISO's Merchants in the Merchant Program consistent with the
agreed upon underwriting standards stated in the Credit Policies
and Procedures as they may be changed from time to time by mutual
agreement between ISO and BANK.
B. Establish Merchant fees for Visa, Master Card or other credit card
transactions as determined by ISO.
C. Sponsor ISO as an independent sales organization for Visa and as a
member service provider for MasterCard.
D. Provide ISO with all applicable Rules.
E. Provide ISO with access to information contained in the Visa
interchange directory, as amended from time to time.
F. Enter into Merchant Agreements with Merchants and ISO.
IV. SETTLEMENT AND PAYMENT
4.1 CLEARING ACCOUNT. BANK shall establish and maintain the Clearing
Account during the term of this Agreement. ISO shall have no right,
title or interest in the Clearing Account or any funds on deposit
therein.
4.2 MERCHANT FEES. Each month BANK will debit Merchants ss. settlement
accounts for the amount of Merchant fees in accordance with the
periodic information supplied by ISO or third party processor.
4.3 BANK FEES. Each month BANK will compute and deduct its fees as set
forth on Exhibit A, Pricing, from the Merchant fee received with the
balance to be remitted to ISO. BANK monthly will deliver to ISO a
statement detailing the computations used by BANK in arriving at the
compensation.
6
7
4.4 TRANSFER ACCOUNT
A. ISO shall establish and maintain the Transfer Account at BANK
during the term of this Agreement to facilitate the making of all
payments due to BANK and ISO hereunder.
4.5 SETTLEMENT PROCEDURES
A. BANK shall utilize the Clearing Account to settle each Merchant
Account in accordance with the terms of the applicable Merchant
Agreement, remitting to each Merchant, by ACH or other acceptable
method, all receipts due to such Merchant after first deducting
from such receipts all applicable fees and charges. BANK shall by
ACH deduct the monthly fees charged Merchant by ISO and remit same
to ISO.
B. BANK shall by the 15th day of each month credit ISO's Transfer
with all monies collected from ISO Merchant for ISO ss.s fees and
other charges for the previous month's merchant fees and charges.
V. THIRD PARTY REQUIREMENTS
5.1 VISA/MASTERCARD REQUIREMENTS
A. Registration. ISO will register with MasterCard as a Member
Service Provider, will enter into a Member Service Provider
agreement with MasterCard. ISO also will register as an
Independent Sales Organization with Visa. Any associated fees
from either MasterCard or Visa will be the responsibility of the
ISO. All MasterCard or Visa fees incurred as a result of
Transactions generated by Merchants of ISO will be the
responsibility of ISO.
B. Fines. ISO will reimburse BANK within seven (7) days for any
fines imposed upon BANK due to noncompliance on the part of ISO
with any of the Rules.
C. Locations. ISO has disclosed and will continue to disclose to
BANK the cities in which ISO has sales offices.
D. Priority of Rules. BANK and ISO agree that, in the event of
any inconsistency between this Agreement and any Rules, the Rules
will apply.
E. Rule Compliance. ISO acknowledges that it has received,
understands, and that it agrees to comply fully with all
applicable Rules.
F. No Delegation. ISO will not delegate any of its rights or
obligations under this Agreement to any other person or entity,
however ISO may have third parties perform its obligations under
this contract.
G. MasterCard Rights. ISO agrees that MasterCard has the right,
either in law or in equity, to enforce any provision of the Rules
and to prohibit ISO conduct that creates a risk of injury to
MasterCard or that may adversely affect the integrity of
MasterCard systems, information, or both. ISO will refrain from
taking any action that would have the effect of interfering with
or preventing an exercise of such right by MasterCard.
7
8
H. Merchant Fee Disclosure. All merchant fees must be clearly and
conspicuously disclosed to the Merchant in writing prior to any
payment or application.
I. ISO must promptly volunteer a name or title of and telephone
number for an employee of BANK upon request of a Merchant or if
ISO is unable or unwilling to respond to a Merchant question.
VI. REPRESENTATIONS AND WARRANTIES AND CONFIDENTIALITY
6.1. REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to
the other that:
A. Good Standing. ISO is a corporation authorized, validly
existing and in good standing under the laws of the State of
Nevada, and has its principal processing office located in the
State of Florida. BANK is a national banking association.
B. Full Authority. ISO and BANK have full authority and corporate
power to enter into this Agreement and to perform its obligations
under this Agreement.
C. No Violation. ISO's and BANK'S performance of this Agreement
will not violate any applicable law or regulation or any
agreement to which it may now or hereafter be bound.
D. Enforceability. This Agreement represents a valid obligation
of the parties and is fully enforceable against it according to
its terms.
E. Compliance. ISO and BANK will comply with the terms of this
Agreement, with the Rules, and with all applicable state and
federal laws and regulations.
F. No Litigation. ISO and BANK and their officers and directors
are not a party to any pending litigation that will affect the
performance of this Agreement.
6.2 REPRESENTATIONS AND WARRANTIES REGARDING MERCHANTS
ISO to the best of its knowledge hereby represents and warrants to BANK
as to each Merchant under the Merchant Program the following:
A. The information submitted on the Merchant is complete, true and
accurate;
B. The material terms of the Merchant Agreement have not been
impaired, waived, altered or modified in any respect except by
written instrument contained with the Merchant Agreement agreed to
by BANK;
A. No instrument or waiver, alteration or modification has been
executed and no one has any rights of rescission, setoff,
counterclaim or defenses against ISO, which has been asserted or
which may be asserted with respect to a Merchant or the Merchant
Program;
A. All fees, expenses and charges under the Merchant Program have
been fully disclosed and there are no obligations or requirements
as to the completion of any advancement of funds or payments under
the Merchant Agreements, the Merchant Program or with any
Merchant;
8
9
A. ISO has done a reasonable background check on each of its
representatives and Merchants and submits that each Merchant has a
good reputation for honesty and integrity and ISO knows of no
wrongful actions and proprieties or other information which would
be material and should be disclosed to BANK;
A. ISO has no knowledge of any circumstances or conditions with
respect to any actions or credit issues which can reasonably be
expected to cause an adverse effect on the Merchant Program or
BANK;
A. Except as may be fully disclosed, no officer or director of ISO
has knowledge of any claims or claims to have any interest in the
property, real, personal, tangible, or intangible or any
contractor commitment or any other interest with respect to any
Merchants and the Merchant Program;
A. ISO submits that no representations or warranties made in this
Agreement or any Schedule or Exhibit attached or Certificate
delivered contains or will contain any untrue statement of
material fact or omit any material fact necessary in order to make
the statement contained therein not misleading.
6.3 CONFIDENTIALITY. ISO and BANK each agree that it will retain in
strictest confidence the Confidential Information and all information
and data belonging to or relating to the business of the other party
(including without limitation information related to Merchants), and
that each party will safeguard such information and data by using the
same degree of care and discretion that it uses to protect its own
confidential information. No party will use the other party's
Confidential Information for its own benefit other than for the
purposes contemplated by this Agreement, nor will it allow any third
party to use such information. ISO will limit access to the MasterCard
systems to only those ISO employees with a need to have access to carry
out the responsibilities of this Agreement. ISO will use MasterCard
information identified or reasonably understood to be confidential or
proprietary solely to perform its duties on behalf of BANK and not for
its own use. ISO will implement reasonable and appropriate safeguards
to prevent unauthorized access to such systems.
VII. INDEMNIFICATION
ISO agrees to indemnify, hold harmless and defend BANK, its directors,
officers and employees from any and all claims, damages, liabilities,
lawsuits and expenses (including without limitation attorney's fees
that the BANK may sustain or incur as a result of any negligence,
wrongful acts, misrepresentations or misconduct by ISO or any actions,
omissions, or misconduct arising or related to any Merchant or any
untrue or misleading representation or warranty by ISO, provided
however that BANK shall not be indemnified against any claims, damages,
liability, lawsuits and expenses arising out of or resulting from
BANK'S own willful or reckless misconduct)
BANK agrees to indemnify, hold harmless and defend ISO, its directors,
officers and employees from any and all claims, damages, liabilities,
lawsuits and expenses (including without limitation attorney's fees
that the ISO may sustain or incur as a result of any negligence,
wrongful acts, misrepresentations or misconduct by BANK or any actions,
omissions, or misconduct arising or related to any Merchant or any
untrue or misleading representation or warranty by BANK, provided
however that ISO shall not be indemnified against any claims, damages,
liability, lawsuits and expenses arising out of or resulting from ISO'S
own willful or reckless misconduct)
9
10
VIII. TERM, TERMINATION, DEFAULT
8.1 TERM. This Agreement will become effective on the Effective Date, and
will remain in effect for a period of two (2) years from the Effective
Date (Initial Term). This Agreement will automatically renew for two
(2) year periods (Renewal Term) unless terminated earlier in accordance
with the provisions of this Agreement.
8.2 TERMINATION. Notwithstanding the above, the parties will have the
following rights.
A. Automatic Termination. This Agreement will automatically
terminate if: (i) Visa or MasterCard prohibits ISO from
providing, or prohibits BANK from allowing ISO to provide, the
services set forth in this Agreement, or (ii) BANK is no longer a
member of MasterCard or Visa.
B. Termination For Cause. Any party may terminate this Agreement
upon the occurrence of an Event of Default.
8.3 DEFAULT. Each of the following occurrences will constitute an Event of
Default under this Agreement:
A. Nonpayment. Any party fails to pay the other when due any
undisputed amount due under this Agreement and such failure
continues for a period of seven (7) business days after written
notice has been sent to the non-paying party.
B. Financial Instability. Any party: (i) files for bankruptcy,
receivership, insolvency, reorganization, dissolution,
liquidation or any similar proceeding, (ii) has a proceeding
instituted against it and such proceeding is not dismissed within
60 days, (iii) makes an assignment for the benefit of its
creditors or an offer of settlement, extension or composition to
its creditors generally; or (iv) a trustee, conservator, receiver
or similar fiduciary is appointed for that party or substantially
all of that party ss.s assets; or (v) any significant or material
negative change in the financial condition of a party that the
other party reasonably deems itself insecure.
C. False Representation. Any representation or warranty made by a
party or any of its employees, officers, or directors proves to
have been knowingly false or misleading in any material respect
as of the date made.
D. Breach. Either party fails to observe any material obligation
specified in this Agreement, and such failure is not cured within
thirty (30) days of receipt of written notice thereof from the
non-breaching party.
8.4 CERTAIN POST-TERMINATION RIGHTS. No termination of this Agreement will
affect any right of ISO with regard to Merchant Agreements. Upon
termination for any reason, BANK will fully cooperate in, either
assigning the Merchant Agreements to another Visa/MasterCard member, or
remaining a party to any or all Merchant Agreements, in which case the
BANK will be released of all liability.
10
11
IX. NAMES AND TRADEMARKS
9.1 NAMES. All correspondence, materials and/or oral solicitations directed
by ISO to customers, or produced by any third party, concerning
BANK ss. - programs must prominently identify BANK by its name and the
city in which BANK is located. BANK shall have the right to review and
approve all materials in which BANK's name is identified.
9.2 VISA/MASTERCARD TRADEMARKS. ISO acknowledges that MasterCard and Visa
are the sole owners of their trademarks. ISO will not contest the
ownership of such marks, and Visa or MasterCard may at any time and
immediately without advance notice prohibit ISO from using its marks
for any reason. ISO may not use the Visa or MasterCard trademarks on
any material unless BANK ss. - name and city location are prominently
printed adjacent to the trademark. All material that uses the Visa or
MasterCard trademarks must clearly identify ISO as BANK'S agent or
representative. ISO may only use the trademarks owned by Visa,
MasterCard in accordance with the Rules. Solicitation material used by
ISO must clearly disclose that any Merchant Agreement will be between
the Merchant, ISO and BANK. ISO may not use any MasterCard ▇▇▇▇ on its
own behalf in furtherance of providing Merchant services, nor suggest
or imply that it is a member or an authorized representative of
MasterCard, or that MasterCard endorses ISO.
X. GENERAL
10.1 ASSIGNABILITY; SALE OR MERGER OF THE PARTIES.
A. Assignment. ISO may not assign or delegate this Agreement or
the Merchant Agreements without the prior written consent of
BANK, provided that such consent shall not be unreasonably
withheld and any unauthorized assignment will be null and void.
Any dispute concerning withholding consent to assignment shall
be settled through arbitration pursuant to the Uniform
Arbitration Act. The parties shall mutually select an arbitrator
from a panel of arbitrators on the Alternative Dispute Resolution
panel of the American Arbitration Association.
BANK may not assign its rights under this Agreement or any
Merchant Agreement without the express consent of ISO provided
that such consent shall not be unreasonably withheld and any
unauthorized assignment will be null and void.
B. Purchase. Any person, firm, partnership or corporation that
enters into a purchase, merger, asset purchase or stock exchange
agreement with the BANK will be bound by this Agreement.
Any person, firm, partnership or corporation that enters into a
purchase, merger, asset purchase or stock exchange agreement with
the ISO will be bound by this Agreement. ISO will give BANK one
hundred twenty (120) days advance notice of any purchase, merger,
asset purchase or stock exchange agreement.
11
12
10.2 NOTICE. All communications under this Agreement will be in writing and
will be delivered in person or by mail, return receipt requested, or
courier, addressed to the addresses set forth in the opening paragraph
of this Agreement, to the attention of:
ISO:
BANK:
The parties may, from time to time, designate different persons or
addresses to which subsequent communications will be sent by sending a
notice of such designations in accordance with this Section.
10.3 MASTER AGREEMENT. This terms and conditions of this Agreement shall
prevail and shall be deemed to be the terms and conditions of all other
Agreements between ISO and BANK, both prior and subsequent, when there
is a conflict between the terms and conditions of this Agreement and
any other agreement between ISO and BANK, either prior or subsequent.
10.4 ENTIRE UNDERSTANDING, AMENDMENT. This Agreement, including the attached
Exhibit which is incorporated by reference, sets forth the entire
understanding of the parties relating to its subject matter, and all
other understandings, written or oral, are superseded. Except as
otherwise provided in this Agreement, this Agreement may not be amended
except in writing executed by both parties.
10.5 SEVERABILITY. If any provision of this Agreement is illegal, the
invalidity of such provision will not affect any of the remaining
provisions, and this Agreement will be construed as if the illegal
provision is not contained in the Agreement. This Agreement will be
deemed modified to the extent necessary to render enforceable its
provisions, and to comply with the Rules.
10.6 NO WAIVER OF RIGHTS. No failure or delay on the part of any party in
exercising any right under this Agreement will operate as a waiver of
that right, nor will any single or partial exercise of any right
preclude any further exercise of that right.
10.7 SUCCESSORS AND ASSIGNS. This Agreement will inure to the benefit of and
will be binding upon the parties and their respective permitted
successors and assigns. This Agreement will not be deemed to be for the
benefit of any third party.
10.8 APPLICABLE LAW. The Agreement will be deemed to be a contract made
under the laws of the State of Ohio, and will be construed in
accordance with those laws. The parties agree that venue and
jurisdiction shall be in the federal or state courts located in
Cincinnati, ▇▇▇▇▇▇▇▇ County, Ohio.
10.9 INDEPENDENT BUSINESS ENTITIES. BANK and ISO will be deemed to be
independent business entities and will not be considered to be servant,
joint venture or partner of the other.
12
13
10.10 CONSTRUCTION. The headings used in this Agreement are inserted for
convenience only and will not affect the interpretation of any
provision. All sections mentioned in the Agreement reference section
numbers of this Agreement. The language used will be deemed to be the
language chosen by the parties to express their mutual intent, and no
rule of strict construction will be applied against any party.
10.11 FORCE MAJEURE. Neither party will be liable to the other for any
failure or delay in its performance of this Agreement in accordance
with its terms if such failure or delay arises out of causes beyond the
control and without the fault or negligence of such party.
10.12 SURVIVAL. All agreements that by their context are intended to survive
the termination of this Agreement, including but not limited to the fee
provisions of Article IV, representations and warranties and
confidentiality provisions of Article VI, and the post-termination
rights of Section 8.4, will survive termination of this Agreement.
ISO BANK
By: _______________________________ By: _______________________________
Name: _______________________________ Name: _______________________________
Title: _______________________________ Title: _______________________________
Date: _______________________________ Date: _______________________________
13
14
EXHIBIT A
PRICING
14