EXHIBIT 14.6
STORED VALUE CARD
DISTRIBUTION AGREEMENT
THIS AGREEMENT is entered into this 29th day of September, 2004, by and
between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Inc. ("MBI"), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and I PREPAY Inc, a subsidiary of Radiant Holdings Inc,
("Distributor"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
ARTICLE I
DISTRIBUTORS
1.1 "Product": NiBI Non-Hologram Stored Value Card-ATM Card upgradeable
by the end user to a Hologram Stored Value Card-AIM Card.
1.2 "Product Unit": 1 or 2 card "J Hook" package containing PIN based
non-hologram stored value cards to which cash can be added at retail locations.
1.3 "Stored Value Card System": A tool allowing retail locations to
sell, activate and perform Patriot Act compliance for issuers of the Product and
to load value on the Product.
1.4 "Manufacturer's Suggested Retail Price" ("MSRP"): The price of the
Product Units in United States Dollars, as set forth herein. MBI may change the
MSRP of any Product Unit from time to time. Any change to the MSRP of any
Product Unit will take effect upon 30 days prior written notice to Distributor.
1.5 "Distributor's Retail Network": Retailers of Product Units bound by
a distribution agreement with Distributor and selling to the end user of the
Product.
ARTICLE 2
GRANT OF DISTRIBUTORSHIP
2.1 MBI hereby grants Distributor and Distributor accepts for a term of
one year from the date hereof ("Term"), the non-exclusive right to distribute
Products in the United States of America, subject to the terms and conditions
of this Agreement.
2.2 Distributor shall use its best efforts to achieve maximum sales of
products and appears to establish an adequate retail network, consistent with
good business ethics and in a manner that will reflect favorably on MBI and on
the goodwill and reputation of MBI.
2.3 Distributor will maintain sufficient Product inventory to allow
fulfillment of any reasonable order from a retailer in Distributor's Retail
Network within 24 hours of receipt of the order.
ARTICLE 3
DISTRIBUTOR REQUIREMENTS
3.1 Launch no less than 10,000 point of sale retail locations.
3.2 Purchase at least 50,000 Product Units within 30 days of the date
hereof and an additional 200,000 Product Units annually throughout the Term and
any renewal terms hereof.
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3.3 Provide retails with information regarding the Stored Value Card
System and with set up, training and implementation of the Stored Value Card
System at Distributor's cost.
3.4 Shall provide to retailers a purchase or lease program for the
hardware necessary to implement the Stored Value Card System for retailers not
having hardware compatible with the Stored Value Card System.
3.5 Provide reasonable assistance to MBI in the implementation of the
necessary products and services to support the Product.
3.6 Provide advertising materials to the Distributor's Retail Network
promoting the Product.
3.7 Establish specifications for a launch plan for distribution of the
Product and inform MBI of the identity of Distributor's team leader responsible
for the launch of the distribution plan and the implementation of the Stored
Value Card System throughout Distributor's Retail Network.
3.8 Distributor acknowledges that implementation of the Stored Value
Card System throughout Distributor's Retail Network will require significant
involvement by Distributor's technical personnel. To implement the Stored Value
Card System Distributor shall:
(a) Define and implement a plan for the trial testing and loading
of the Product, including a timeline and anticipated dates of implementation.
(b) Provide appropriate information to all Distributors sales
agents and independent representatives sufficient for the sales agents and
independent representatives to market the Product.
ARTICLE 4
MBI REQUIREMENTS
4.1 Deliver Product Units to Distributor as required by Distributor and
as provided herein.
4.2 Provide basic telephone support and customer service to end-users
of the Product. Distributor may request that MBI provide additional technical
support to retailers, with pricing of such additional support to be determined
by MBI based upon the specific nature and time intensity of the support
requested.
4.3 Provide Distributor necessary software tools to load the Stored
Value Card System on compatible hardware owned or leased by the retailer.
4.4 Direct customers of Distributor's Retail Network to local
participating retailers in Distributor's Retail Network.
4.5 Provide Distributor with up to five days of training for
Distributor's sales staff on set up and implementation of the Stored Value Card
System. Training will consist of:
(a) Providing 5 Product Units to Distributor for training and
testing purposes.
(b) Work with Distributor's staff during the Product launch and
Stored Value Card System implementation to assist Distributor's staff in gaining
an adequate understanding of the Product and the Stored Value Card System.
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a. Upon test completion of the generic Stored Value Visa/Master
Card ATM assure that it is functioning as intended, the design of the Radiant's
Private Label Stored Value Visa/Master ATM Card product will to go for approval.
The approval process takes approximately 6 to 8 weeks.
(c) Provide training in the areas of transaction, reporting and
other operating procedures.
4.6 Upon the completion of training, MBI shall test the Product as
purchased through a Distributor's Retail Network retailer to ensure proper
functioning of the Stored Value Card System as implemented in Distributor's
Retail Network.
ARTICLE 5
ORDERS AND PRICING:
5.1 Price: If ▇▇▇▇▇▇ Prints all the packaging.
(a) 1 Card Product Unit: $x.xx.
(b) 2 Card Product Unit: $x.xx.
5.1.1 If Radiant would like to print the packaging there will be a per
card cost of $1.50 for the Bin and account set-up.
The above pricing is based on a minimum order of 10,000 units. Orders
of less than 10,000 units will be priced per MBI's standard small order
pricing, as adjusted by MBI from time to time.
5.2 The Manufacturer's Suggested Retail Price (MSRP) of the 1 Card
Product Unit is $x.xx. The MSRP for the 2 Card Product Unit is $xx.xx.
5.3 MBI will use its best efforts to fill Product orders as quickly as
possible following receipt by MBI of the written order (fax or e-mail shall
constitute a written order).
5.4 Set-up fee for a private label program is $x,xxx-xx,xxx. Depending
on the program.
5.5 All shipments of product will by F.O.B., and shall be invoiced upon
shipment. Each Invoice shall be due and payable to MBI within 30 days of the
date of the invoice.
5.6 Each amount payable to MBI hereunder shall be paid in fun,
with no deductions or offsets, and remitted in United States
Dollars by check, money order or deposit in such account at
such financial institution as MBI shall from time to time
designate. Delinquent payments shall bear interest at the rate
of 1.5% per month of the delinquent amount until paid, or the
maximum interest rate permitted by law, whichever is less.
5.7 On all Distributor brand product, Distributor shall pay 25% of
the purchase in advance to cover costs. Per email 9/29/04 1:28
PM, ▇▇▇▇ ▇▇▇▇. Hereby attached.
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5.7 In the event that any Product is superseded by a new version of
the Product, MBI shall give Distributor notice of such new
version. Distributor may obtain the new version of said Product
on a Product Unit per Product Unit basis by returning unsold
Product Units of the superseded Product within thirty (30)
days of such notice from MBI. Upon return of unsold units,
together with an order for the new version of said superceded
Product, MBI shall ship the requested number of Product Units,
subject to the provisions of this Article, and provided that
Distributor shall bear the costs of shipping and handling,
together with any difference between the Price for the
superseded Product Unit and the Product Unit Price for the new
version of the Product.
5.8 In the event Distributor desires the assistance of MBI's
technical personnel in implementation of the Stored Value Card
System or any upgrade thereto, including the development of any
software to increase the Shared Value Card System's
compatibility with the existing hardware in Distributor's
Retail Network, such assistance shall be provided pursuant to a
separate agreement and at pricing to then be determined by MBI.
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6.7 COMMISSIONS,
6.7.1 MBI shall. pay the following commissions to Distributor:
6.73.1 $x.xx out of each load fee collected by MBI from a load of cash
onto any Product purchased at any retailer in Distributor's
Retail Network
6.7.1.2 $x.xx out of each monthly fee collected by NMI FROM ANY monthly
fee due for any Product Unit purchased from a retailer in
Distributor's Retail Network.
6.7.1.3 $x.xx out of each upgrade fee collected by MBI from an upgrade
on any Product purchased at any retailer in Distributor's
Retail Network.
6.7.2 No Commission for any load fee shall be deemed cam d until 100%
of the cash load and load fee have been PAID by the retailer
selling the Product load into the retailer's MBI service
account and such. fiends have been swept into an account owned
and controlled by MBI (THE "4BI SWEEP" ). MBI will not
activate any load on any Product until such time as the MBI
Sweep has occurred.
6.7.3 Commissions shall be paid within 15 days following the end of
the month in which such commissions were earned. MBI shall
provide Distributor with a monthly reconciliation of
commissions earned and paid, or more frequently, if reasonably
requested by Distributor.
6.7.4 Distributor shall be responsible for any commissions or other
payments to retailers in Distributor's Retail Network and MBI
shall have no responsibility far such payments. Distributor
shall indemnify and hold harmless MBI against airy claim,
cause of action, liability or judgment, including attorney's
fees, arising from any retailer in Distributor's Retail Network
for non-payment of any commission or fee due to the retailer
from sales or service of the Product.
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7.7 INTELLECTUAL PROPERTY RIGHTS
7.7.1 MBI represents to Distributor that it owns or has a license to
all of the material contained in the Products and that, to the
best of MBI's knowledge, said Products do not infringe upon any
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copyright, patent, ▇▇▇▇ work, trademark or other proprietary
right of any third party and that MBI has full authority to
enter into this Agreement.
7.72 Distributor shall have no rights to duplicate, translate,
decompile, reverse engineer, or adapt Products without MBI's
prior written consent.
7.7.3 Distributor shall promptly notify MBI of any unauthorized third
party duplication, distribution, or use of Products which comes
to the attention of Distributor and shall provide MBI with
whatever reasonable assistance is necessary to stop such
activities.
7.7.4 Distributor shall not attempt to register any of MBI's
trademarks, company names, or trade names without MBI's written
permission, nor shall Distributor attempt to develop any
products which contain the "look and feel" of any Products, or
of the Stored Value Card System.
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8.7 CONFIDENTIALITY
8.7.1 Distributor, on behalf of itself and its employees, shall take
all reasonable steps to safeguard the Products distributed by
it from any unauthorized use, duplication, sublicensing, or
distribution.
8.7.2 Distributor shall further, on behalf of itself and its
employees, retain all Confidential Information furnished by
MBI in strictest confidence and shall not publish or disclose
such Confidential Information at any time during the term of
this Agreement or after its termination.
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9.7 LIMTED WARRANTIES
9.7.1 MBI does not warrant that the functions contained in Products
will meet the requirements of any end user or that Products are
error-free. However, MBI does warrant that Products will
operate substantially in accordance with the user
documentation. MBI shall further make reasonable efforts to
correct any significant reproducible error in Products or in
the Stored Value Card System for which MBI receives written
notice promptly after such error comes to the attention of
Distributor, provided such error relates to the proper
functioning of Products and has not been caused by negligence
on the part of Distributor or any third party, hardware
malfunction, or other causes external to the Products in the
Stored Value Card System.
9.7.2 MBI warrants that Products are free from defects in materials
and workmanship under normal use for a period of ninety (90)
days from the date of delivery by Distributor to the retailer.
MBI's entire liability and Distributor's sole and exclusive
remedy, as well as that of any retailer and end user, shall be
replacement without charge of any Product Unit which proves
defective within the ninety (90) day period.
9.7.3 The warranties set forth in paragraphs 9.1 and 9.2 of this
Article 9 shall also apply to any new versions of Products
which Distributor distributes in accordance with the terms and
conditions of this Agreement.
9.7.4 THE WARRANTIES CONTAINED IN PARAGRAPHS 9.1, 9.2 AND 9.3 OF THIS
ARTICLE 9 ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS,
EXPRESS OR IMPLIED, INCLUDING, WTTHOUT LIMITATION, THOSE OF
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MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO
EVENT SHALL MBI BE LIABLE FOR DAMAGES, DIRECT OR INDIRECT,
INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES SUFFERED BY
DISTRIBUTOR, ANY RETAILER, END USER OR OTHER THIRD PARTY
ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT,
NEGLIGENCE OR ANY OTHER LEGAL GROUND OF ACTION.
9.7.5 Distributor shall indemnify and hold MBI harmless from and
against any claims, expenses, losses or damages arising out of
or in connection with Distributor's distribution of Products.
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10.7 COMPL1ANCE WITH LAWS
10.71 Distributor shall assure compliance with all applicable federal
and state laws and regulations governing its operations.
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11.7 RENEWAL OF AGREEMENT AND TERMINATION
11.7.1 This Agreement shall be automatically renewed for one (1) year
periods after the end of each one year term, unless either
party gives written notice of non-renewal to the other at least
30 days prior to the end of their current term.
11.7.2 This Agreement shall be subject to termination at any time upon
thirty (30) days written notice by either party hereto.
11.7.3 This Agreement shall be subject to immediate termination for
good cause, at the election of MBI by written notice to
Distributor at any time in the event of any one or more of the
following:
11.7.3.1 Any illegal, unfair or deceptive business practices or
unethical conduct whatsoever by Distributor, whether or not
related to Products;
11.7.3.2 A receiver, liquidator, trustee or like official is appointed
for Distributor or any substantial portion of its property or
if Distributor shall have filed or consented to any petition in
bankruptcy or other insolvency proceedings or shall have made
any assignment for the benefit of creditors;
11.7.3.3 The nonpayment, within fifteen (15) days past the due date, of
any financial obligation due from Distributor pursuant to
Article 5 hereof; or
11.7.3.4 Any default by Distributor in the due observance or
performance of any term or condition of this Agreement, other
than that as specified in subparagraph (b), and such default
shall have continued for a period of thirty (30) days after
written notice specifying the same shall have been given by MBI
to Distributor.
11.7.4 Termination shall not extinguish any of Distributor's
obligations under this Agreement which by their terms continue
after the date of termination, including, but not limited to,
the confidentiality obligations under Article 8 above.
11.7.5 Termination shall not entitle Distributor to any compensation
by MBI on any grounds whatsoever, including, but not limited
to, lost profits, loss of goodwill, and consequential, direct,
indirect, punitive or exemplary damages.
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11.7.6 For a period of six (6) months after termination, Distributor
shall have the right to sell off existing stock of products for
which full payment has been made.
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12.7 MISCELLANEOUS
12.7.1 SEVERABILITY. If any provision or portion of this Agreement
shall become invalid or unenforceable for any reason, there
shall be deemed to be made such minor changes in such provision
or portion as are necessary to make it valid or enforceable.
The invalidity or unenforceability of any provision or portion
hereof shall not affect the validity or enforceability of the
other provisions or portions hereof.
12.7.2 ENTIRE AGREEMENT. This Agreement, together with the attached
schedules, contains the entire agreement between the parties
with respect to the subject matter contained herein and
supersedes any and all prior understandings or agreements
between the parties, whether oral or in writing. Any warranty,
representation, promise, or condition not incorporated herein
shall not be binding upon either party. No modification,
renewal, extension, or waiver of this Agreement or any of its
provisions shall be binding unless made in writing and signed
by the parties hereto.
12.7.3 INDEPENDENCE OF PARTIES. Nothing in this Agreement shall be
construed as creating a partnership or joint venture between
the parties or making Distributor an agent or employee of MBI.
In all of its operations hereunder, Distributor shall be an
independent contractor, shall conduct its business at its own
cost and expense, and shall have no authority to make any
representation or warranty on behalf of MBI.
12.7.4 GOVERNING LAW. This Agreement has been negotiated and prepared
and will be performed in the United States, and the validity,
construction and enforcement of and the remedies under, this
Agreement shall be governed in accordance with the laws of the
United States and the state of Florida (except any choice of
law provisions of United States and Florida law shall not apply
if the law of a state or jurisdiction other than Florida would
apply thereby), except as to copyright and trademark matters
which shall be governed by the laws of the United States and
any applicable international conventions.
12.7.5 VENUE. Venue of any action brought to interpret or enforce this
agreement shall lie exclusively in the County of Sarasota,
Florida, if the action is brought in the courts of the State of
Florida; and if brought in the courts of the United States of
America, in the Middle District of Florida, Tampa Division.
12.7.6 WAIVER. Failure or delay on the part of MBI or Distributor to
exercise any right, power or privilege hereunder shall not
operate as a waiver thereof, now shall any single or partial
exercise of any right, power or privilege preclude any other or
further exercise thereof.
12.7.7 NOTICES. All notices, requests, demands, or other
communications which are required or may be given under this
Agreement shall be in writing in the English language and shall
be deemed to have been duly delivered if sent by first class
registered or certified airmail, or by telex, facsimile or
other electronic transmission (confirmed by first class
registered or certified mail) and properly addressed to the
appropriate party at the address set forth above, until
changed by notice in writing by either party hereto to the
other party. If sent by airmail, notice shall be effective
fourteen (14) days from the date of deposit with the post
office. If sent by electronic transmission, notice shall be
effective one day after transmission.
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12.7.8 ASSIGNMENT This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns,
but neither this Agreement nor any of the rights, interests, or
obligations hereunder shall be assigned by any party hereto
without the prior written consent of the other party, nor is
this Agreement intended to confer upon any other person except
the parties hereto any rights or remedies hereunder.
12.7.9 ATTORNEY'S FEES. In any arbitration or litigation brought
under this Agreement or relating to any alleged breach of this
Agreement, the prevailing party shall be entitled to recover,
in addition to all damages suffered, its reasonable attorney's
fees and costs.
IN WITNESS WHEREOF, MBI and Distributor each has caused this Agreement
to be executed on its behalf by its duly authorized officer.
MBI, INC.
By: /s/
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As its: CEO
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Date: 9/29/04
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I PREPAY, INC
By: /s/
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As its: President
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Date: 9/26/2004
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