EXHIBIT 10.19
GENERAL MARKETING AGENT AGREEMENT
NETZEE, INC. a Georgia Corporation ("Servicer") and the undersigned ("Agent"),
in consideration of their obligations in this Agreement and intending to be
legally bound, agree as follows:
1. Definitions: For purposes of this Agreement:
a) "End-User" shall mean, an end-user bank or savings bank that meets the
qualifications and criteria applicable to such offering establishment
by servicer for solicitation by Agent from time to time.
b) "Master Services Agreement" shall mean the contract in the form, and
containing the terms and conditions (including price and payment
terms), established by Servicer from time to time for internet
banking, commercial cash management and telephone banking products or
services ("Services") provided or made available to End-Users.
c) A Master Services Agreement shall be "obtained from an End-User" if,
and only if, the Master Services Agreement has been executed by an
authorized representative of the End-User.
d) "Term" shall mean that period commencing on the date hereof and
lasting for a period of twelve complete months and any subsequent
renewal period.
2. Appointment: Subject to the terms of this Agreement, Servicer engages Agent
to solicit End-Users to enter into Master Services Agreements with Servicer for
its Services. Agent shall be the exclusive agent to solicit End-Users with
respect to their proposed installation and use of the Services in Texas, and
shall be a nonexclusive agent in all other locations. Servicer reserves the
right to change the terms and conditions of its Master Services Agreement at any
time. Servicer agrees to provide thirty (30) days notice to Agent of any
substantive changes. Agent represents and warrants to Servicer that it has the
authority to enter into this Agreement and to perform its terms fully.
3. Nature of Relationship: Agent agrees not to market, endorse, affirmative
promote, or advertise or otherwise solicit End-Users on behalf of, any Services
that are the same or similar to or that are competitive with the Services during
the Term of this Agreement and for any period for which Servicer pays Agent any
sums pursuant to this Agreement. Agent shall be an independent contractor.
Nothing in this Agreement shall be construed to create any other relationship.
Agent is hereby advised that, as an independent contractor, it has certain
responsibilities under the federal and state tax laws.
[MATERIAL HAS BEEN DELETED FROM THIS EXHIBIT PURSUANT TO A CONFIDENTIAL
TREATMENT REQUEST]
4. Responsibilities of Agent: The duties of Agent shall be to:
a) Use its commercially reasonable efforts to solicit End-Users to enter
into Master Services Agreement;
b) Conduct its business so as to maintain and increase the goodwill and
reputation of Servicer;
c) Pay all expenses incurred by Agent in the performance of its duties
under this Agreement, including (1) dues and fees for membership in
any local, state, or national trade association or attendance at
seminars or conventions; (2) local and long-distance transportation
expenses: and (3) expenses in connection with the solicitation of End-
Users and the operation of Agent's business, including telephone,
delivery, entertainment, and promotional expenses; and
d) Use only promotional material mutually agreed upon for purposes of
promotion of the Servicer's business.
5. Limits of Authority: Neither Agent nor Servicer shall, without prior
written approval from an authorized representative of the other party, take any
of the following actions:
a) Incur any expense or obligation, contractual or otherwise, in the name
of or on behalf of the other party; or
b) Disseminate any printed material regarding the other party or its
business or Servicer's business other than promotional and advertising
material which has been delivered by the other party for such use.
6. Payment of Commissions: Agent shall be compensated by Servicer for its
Services by commissions on any Master Services Agreements for End-Users located
within Texas and on the basis of commissions earned on any Master Services
Agreement for End-Users located elsewhere. Commissions and requirements are set
forth in a Commission Schedule attached hereto as Exhibit "A". The payment of
any commissions to Agent shall be subject to all of the terms and conditions of
this Agreement.
7. Statements: Servicer shall mail Agent a monthly statement showing
commissions earned within twenty days after the end of each month. At no time
shall Servicer be obligated to reimburse Agent for any expenses unless it agrees
to do so in writing. Payment of the amounts reflected in such monthly statement
shall be made within ten days after its transmittal.
8. Sales Support: Servicer shall provide sales support to Agent including
promotional materials and sales representatives as reasonably required by Agent
and agreed to by Servicer.
9. Voluntary Termination: Prior to completion of the initial Term or any
renewal Term, either Servicer or Agent may terminate this agreement at any time
without cause by giving the other party sixty (60) days prior written notice.
The payment of commissions shall continue through the term of any Master
Services Agreement entered into pursuant to this Agreement between Servicer and
an End-User in the event of any termination provided that a party terminating
the Agreement for just cause pursuant to Section 10 may cease all commission
payments.
10. Involuntary Termination: Either party may terminate this Agreement
immediately, without notice to either party for just cause. A termination shall
be deemed "for just cause" if the other party:
a) Breaches any provision of this Agreement which breach is not
reasonably cured within sixty (60) days of written notice thereof by
the non-breaching party;
b) Violates any material law or regulation; or
c) Commits any willful or dishonest act that could injure the other
party.
In addition, this Agreement shall terminate at such time as the Icom B
and Icom C products are distributed to the Agent by the Servicer following
the Agent's exercise of its put right pursuant to Section 5 of that
certain Agreement between Agent and Servicer dated the date hereof.
11. Confidentiality and Non-Solicitation Obligations:
a) Agent acknowledges that Servicer has a proprietary interest in the
association of its agents and personnel and the business of the
customers with whom such agents and personnel interact. Accordingly,
Agent shall provide Servicer with the benefit of all work and customer
contact information relevant to the business of Servicer throughout
the term of this Agreement. Agent shall maintain in strict confidence,
and shall not use or disclose except to its regulatory authorities, as
required by law or legal process, and as required to perform its
duties for Servicer, all Trade Secrets of Servicer. This obligation
shall apply during and after the term of this Agreement for so long as
the pertinent information or data remain Trade Secrets, and shall
apply regardless of whether the Trade Secrets are in written or
tangible form. For purposes of this Agreement, a Trade Secret is
defined to consist of legally protected rights in confidential
information and "trade secrets" under applicable law. Without limiting
the generality of the foregoing, Trade Secrets of Servicer include
nonpublic information regarding the Servicer from which Servicer
derives value, including account invoices, training and educational
manuals, administrative manuals, customer lists and
information, software and other technology used in Servicer's
business, business plans, financial information and projections, and
prospective customer leads developed by Servicer, regardless of
whether computer or electronically accessible "on-line". However,
Trade Secrets do not include information Agent possesses or acquires
independently of Agent's activities or duties as an agent of Servicer
or which are in the public domain, provided Agent does not receive
such information from a person under an obligation to Servicer or its
affiliates, contractual or otherwise, to keep such information
confidential. The foregoing obligations shall continue to apply after
termination of this Agreement for two (2) years.
b) During the Term hereof and for a period of two years after the
termination of Agent's engagement for any reason, Agent shall not
directly or indirectly, through one or more intermediaries or
otherwise, solicit or attempt to solicit (1) Customers, to induce or
encourage them to acquire or obtain from anyone other than the
Servicer, internet banking, commercial cash management or telephone
banking services or products competitive with or substitute for any
Services, or (2) any individual who is at any time during such period
an employee of the Servicer or its affiliates for the purpose of
providing internet banking, commercial cash management or telephone
banking services or products that are the same or similar to the
Services. For purposes of this section, a "Customer" refers to any
person or group of persons with whom Agent has or had material contact
with regard to selling, delivery or support of Services or with
respect to which Agent has received any commissions under this
Agreement, during the period of six (6) months preceding the
termination of this Agreement for any reason.
c) Agent agrees that Servicer shall own and retain all right, title, and
interest in and to all software, systems and related documentation,
and all copyright, trade secret, patent and other intellectual
property rights contained in or used as any part of the Services.
Agent agrees to take such further action and execute such further
documentation as Servicer may reasonably request to give effect to
this Section 11.
12. Return of Materials: Upon the request of Servicer and, in any event, upon
the termination of Agent's engagement, Agent shall deliver to Servicer all
memoranda, notes, records, drawings, manuals, disks, other media and documents
pertaining to Servicer's business or Agent's activities or duties, including all
copies, extracts, summaries, and analyses thereof. This obligation shall not
apply to publicly distributed documentation, or internal business or personal
records of Agent's own creation that do not contain Servicer Trade Secrets.
13. Limitation of Liability: OTHER THAN AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, SERVICER SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE, OR
INABILITY TO USE, THE SERVICES OR ARISING OUT OF ANY OTHER CIRCUMSTANCES
ASSOCIATED WITH THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION DAMAGES BASED ON LOSS OF PROFIT, LOSS OR INTERRUPTION OF DATA OR
COMPUTER TIME, ALTERATION OR ERRONEOUS TRANSMISSION OF DATA, EVEN IF A PARTY IS
ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. A party's total liability
to the other party under any provision of this Agreement or for any and all
claims, losses or damages relating to the Services (whether based on tort,
contract, or any other theory), other than claims based upon the willful
misconduct of such party, shall be limited to the amount of commissions paid by
Servicer to Agent for the Services during the six (6) months preceding the
assertion of such claims, losses or damages. The parties acknowledge that each
of them relied upon the inclusion of this limitation in consideration of
entering into this Agreement.
14. Remedies: In the event of any breach by either party identified in Section
10 of this Agreement, or in the event of breach by Agent of the terms of Section
11 of this Agreement, the resulting injuries to the other party would be
difficult to estimate accurately, but it is certain that injury or damages will
result to the business of the other party. Both parties agree that, in the event
of any such breach, the non-breaching party shall be entitled, in addition to
any available legal or equitable remedies or damages, to an injunction to
restrain the violation or anticipated violation thereof. Should the non-
breaching party have any basis to seek such legal or equitable action, the
breaching party shall pay any and all attorney fees and court costs that the
other party may incur. The non-breaching party's rights under this section shall
be in addition to every other remedy (equitable, statutory, legal or
contractual) to which the non-breaching party may be entitled.
15. Miscellaneous: No assignment by Agent or Servicer of this Agreement or any
commissions due hereunder shall be valid unless approved in advance by an
authorized officer of Servicer or Agent, as the case may be. No modification or
waiver of any provision of this Agreement shall be binding on Servicer unless
made in writing and signed by an authorized officer of Servicer. This Agreement
is governed by the laws of the State of Georgia as it
applies to a contract executed, delivered, and performed in such state. This
Agreement supersedes and replaces any agreement previously entered into between
Agent and Servicer with respect to the Services. Servicer's failure to enforce
any provision of this Agreement shall not constitute a waiver of any provision
of this Agreement. The provisions of this Agreement shall be deemed severable.
In the event that any provision of this Agreement is determined to be
unenforceable or invalid, such provision shall nonetheless be enforced to the
fullest extent permitted by applicable law, and such determination shall not
affect the validity and enforceability of any other remaining provisions of this
Agreement. This Agreement, together with all exhibits and schedules attached
hereto and all writings incorporated herein by reference, constitutes the entire
agreement between Agent and Servicer with respect to the subject matter of this
Agreement.
Servicer: Agent:
Netzee, Inc. TIB The Independent BankersBank
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
--------------------------- -----------------------------
Title: Chief Executive Officer Title: Xxxxx X. Xxxxx
------------------------ --------------------------
Date: 9-2-99 Date: 9-3-99
------------------------ ---------------------------
EXHIBIT A
---------
[MATERIAL DELETED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST]
Netzee, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
October 20, 1999
TIB The Independent Bankers Bank
000 Xxxxxx Xxxxx, Xxxxx 000
P.O. Box 560528
Xxxxxx, Xxxxx 00000
Re: Amendment to General Marketing Agent Agreement between Netzee, Inc.
and TIB The Independent Bankers Bank (TIB), dated September 2, 1999
and the Icom B Marketing Agreement between Netzee and TIB, dated
September 3, 1999
Dear Ladies and Gentlemen:
This letter serves to modify the General Marketing Agent Agreement and the
Icom B Marketing Agreement. To clarify the intention of Netzee and TIB with
respect to Netzee's and TIB's responsibilities and obligations in the marketing
and sale of the products and services of Netzee and the Icom B product, Netzee
and TIB agree to the following:
1. The General Marketing Agent Agreement is amended as follows:
a. The second sentence of Section 2 of the General Marketing Agent
Agreement is deleted and replaced with the following to clarify that
TIB's agency is not exclusive:
"TIB shall be an agent for Netzee for the solicitation of End-Users with
respect to their proposed installation and use of the Services."
b. Section 6 of the General Marketing Agent Agreement is deleted and
replaced with the following to make the agreement consistent with the
commission schedule that is attached to the agreement:
"TIB shall be compensated by Netzee for End-Users solicited by TIB who
execute a Master Services Agreement pursuant to a Commission Schedule
attached hereto as Exhibit "A." The payment of any commissions to TIB
shall be subject to all of the terms and conditions of this Agreement."
2. Section 8 of the Icom B Marketing Agreement is deleted from the
Icom B Marketing Agreement and shall be of no further force or effect.
This deletion is made to make the Icom B Marketing Agreement consistent
with Section 3 of the General Marketing Agent Agreement, which states that
TIB will not market any product or service competitive with Netzee's
products and services.
Netzee, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx Xx.
------------------------------
Xxxxxxx X. Xxxxxxxx Xx.
Chief Financial Officer and
Executive Vice President
Agreed and accepted this 20th day of October,
for good and valuable consideration
TIB The Independent Bankers Bank
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: /s/ Xxxxx X. Xxxxx
-----------------------------
Title: President and Chief
Executive Officer
----------------------------
