EXHIBIT 10.9
SALES FINANCE AGREEMENT
This Agreement is entered into as of this 15th day of August, 2000 (the
"Effective Date") by and among MBNA AMERICA BANK, N.A., a national banking
association having its principal place of business in Wilmington,, Delaware
("MBNA"), INNOVATIVE MEDICAL SERVICES, INC., a California corporation having its
principal place of business in El Cajon, CA ("'IMS") and AUTOMATED PAYMENT
SERVICE, INC., a Pennsylvania corporation having its principal place of business
in Jenkintown, Pennsylvania ("AP S"), for themselves and their respective
successors and assigns.
1. DEFINITIONS
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When used in this Agreement, "Agreement" means this agreement and Schedules A
and B and Exhibit 1.
"Customer" means any Dealer Customer who establishes a Loan Account under the
Program.
"Dealer" means an authorized retail seller of IMS Products to consumers pursuant
to a written agreement with IMS.
"Dealer Customer" means any purchaser or potential purchaser of IMS Products.
"Dealer Agreement" means the MBNA agreement to be executed by a Qualified
Dealer.
"Financial Service Products'" means unsecured credit card programs, unsecured
charge card programs, unsecured installment loan programs, unsecured revolving
loan programs.
"IIMS Affiliate" means any entity which, directly or indirectly, owns or
controls, is owned or controlled by, or is under common ownership or control
with IMS.
"IIMS Products" means the water purification system products and related goods,
or services sold or provided by IMS.
"Loan Account" means a consumer credit account established by an Dealer Customer
in response to marketing efforts made pursuant to the Program.
"Pilot Period" means the first 120 days of this Agreement beginning on the
Effective Date.
"Program" means those Financial Service Products and related Services offered to
the Dealer Customers from time to time,
"Qualified Dealer" means a Dealer mutually selected by MBNA, APS and IMS for
Participation in the Program and which is bound by a Dealer Agreement.
MBNA Contract.doc
"Settlement Account" means APS' bank account described on Schedule B hereto
which the parties agree shall be used solely for the Program, for depositing
certain Loan Account proceeds.
"Trademarks" means any design, image, visual representation, logo, service xxxx,
trade dress, trade name, or trademark used or acquired by MBNA or IMS, as the
case may be, during the term of this Agreement.
2. EXCLUSIVIITY
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(a) IMS and APS agree that during the term of this Agreement, IMS and APS: (i)
will endorse the Program exclusively and that neither IMS nor APS shall sponsor,
advertise, aid, develop, solicit or enter into any other arrangements for
Financial Service Products of any entity or person other than MBNA; (ii) will
not license or allow others to license any IMS Trademark in relation to or for
promoting any Financial Service Products of any entity or person other than
MBNA; and (iii) will not sell, rent or make available or allow others to sell,
rent or make available any of its mailing lists or any information about any
Dealer Customers in relation to or for promoting any Financial Service Products
of any entity or person other than MBNA. For purposes of this Section 2(a), APS"
covenants in this Section 2(a) only apply to APS's involvement with IMS Products
and the Qualified Dealers. Nothing herein shall be deemed to prohibit IMS or APS
from continuing to accept credit cards, charge cards and checks as a form of
payment for the IMS Products.
(b) Subject to the terms and conditions of this Agreement, IMS agrees to market
the Program to Dealers, and will include its endorsement of the Program in its
various marketing and promotional communications to the Dealers. Upon IMS, APS
and MBNA selecting a Dealer for participation in the Program, APS will send the
Dealer Agreement to such Dealer for execution by.
(c) Nothing in Section 2(a) of this Agreement shall be deemed to prohibit IMS or
APS from entering into an agreement with a third party for the purpose of
referring Loan Account applications which have been declined by MBNA to such
third party for decisioning; provided, however, that (i) such referrals shall be
subject to satisfaction of applicable laws, as reasonably determined by MBNA,
including, but not limited to, the Fair Credit Reporting Act any privacy laws,
MBNA's then existing privacy policy; and (ii) MBNA shall assume no involvement
(other than ensuring that its application complies with all applicable laws),
cost, or expense in such subsequent Loan Account application referral by APS or
IMS.
3. PROGRAM
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(a) MBNA shall design and administer the Program. The Program will offer Dealer
Customers the opportunity to finance the purchase of IMS Products.
(b) MBNA shall design and produce all Loan Account materials (i.e. applications,
disclosures and related account fulfillment material) at its sole cost. IMS
shall have prior
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approval rights aver MBNA's use of IMS's Trademarks, which shall not be
unreasonably withheld or delayed.
(c) In accordance with Section 3(d), IMS and APS, at their sole cost, shall
market the Program to Dealers. IMS and APS shall, where practicable, give MBNA
at least thirty (30) days prior notice of all new marketing initiatives or
campaigns.
(d) IMS and APS shall, and shall cause the IMS Affiliates to, provide
information to or otherwise communicate with Dealer Customers and Dealers about
the Program only with MBNA's prior written approval, except for current
advertising and solicitation materials provided by MBNA to IMS and APS.
Notwithstanding the above, IMS and/or AP'S may respond to individual inquiries
about the Program from Dealer Customers and Dealers, provided that said
responses are accurate and consistent with the then-current materials provided
by MBNA to IMS and/or APS. Correspondence mistakenly sent to IMS or APS that is
intended for MBNA (e.g, direct mall applications, payments, billing inquiries,
etc.) shall be forwarded to the MBNA account executive via overnight courier
within one business day of receipt. All charges incurred for this service will
be paid by MBNA.
(e) MBNA shall have the right of prior approval aver all Program marketing
materials and any other materials which make reference (whether oral, written or
electronic) to MBNA, the Program or the Loan Accounts (including but not limited
to any modification to materials previously approved by MBNA), which approval
shall not be unreasonably withheld or delayed.
(f) All referrals of Dealer Customers to MBNA for a Loan Account will be done in
accordance with MBNA's instructions and its policies and procedures.
(g) MBNA shall, at its sole cost, design all education materials for IMS and
AP'S employees relating to the Loan Accounts. Such materials shall be promptly
distributed by IMS and APS in accordance with MBNA's instructions.
(h) IMS and APS shall each ensure that it and each of its employees and the
Qualified Dealers who market Loan Accounts are knowledgeable regarding the IMS
Products (e.g., door-to-door sales), the referral process, the Loan Accounts and
the laws, rules and regulations applicable to the marketing and processing of
Loan Accounts, and shall comply with each of the same. IMS and APS agree to
permit MBNA to monitor and/or test any Program marketing and any credit
solicitation referral process performed by IMS, APS or a Qualified Dealer
utilizing site visitation (e.g., visiting IMS's, APS's or a Qualified Dealer's
facilities) and remote listening (e.g., listening from an MBNA facility)
"'Monitor"), all in accordance with applicable law.
(i) MBNA shall make all credit decisions under the Program independently of IMS,
APS and the Qualified Dealers.
(j) IMS and MBNA each hereby grants the other party a limited license to use the
IMS's Trademarks and the MBNA's Trademarks, respectively, (collectively,
"Trademarks") solely in conjunction with the Program, including the promotion
thereof. The Trademarks may not be
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used by any other person for any other reason except as permitted in accordance
with this Agreement. This license shall remain in effect for the duration of
this Agreement, notwithstanding the transfer of such Trademarks by operation of
law or otherwise to any permitted successor, corporation, organization or
individual.
(k) IMS and APS shall each use their best efforts to cause those Dealers
mutually selected by IMS, APS and MBNA for participation in the Program to
execute the Dealer Agreement. IMS and APS shall have sole responsibility for
handling all correspondence and disputes between IMS, APS and/or the Dealers
regarding IMS Products. APS shall distribute payments to and conduct settlement
with a Qualified Dealer owed money arising from the sale of IMS Products
financed with a Loan Account in accordance with its agreement with such
Qualified Dealer. APS shall transmit the funds to the Qualified Dealers or, if
the Qualified Dealer authorizes in writing, to IMS within one business day after
receipt from MBNA. Except as set forth in a Dealer Agreement, MBNA has no
obligation to, or responsibility regarding, a Qualified Dealer.
(l) IMS and APS each agree to use commercially reasonable efforts to assist MBNA
with its relationship with Qualified Dealers, which includes, but is not limited
to, causing Qualified Dealers to comply with the Dealer Agreement.
4. SETTLEEMENT
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(a) For Customers using the Loan Account to finance the purchase of IMS Products
through a funds transfer from the Loan Account to APS and then to IMS or a
Qualified Dealer, settlement of such amounts shall be handled in the following
manner. APS shall transmit to MBNA, using the facilities provided by MBNA,
settlement transactions containing purchases of IMS Products made on Loan
Accounts (only after the IMS Product has been installed and any and all
applicable rights to cancel such purchase contract have lapsed) containing at a
minimum the Loan Account number, amount of transaction, transaction date, and
name and address of the Customer (and other agreed upon information). APS agrees
not to send a settlement transaction to MBNA for any amount due IMS or the IMS
Dealer until the Dealer Customer has signed IMS's Certificate of Completion and
such certificate is in APS's possession and APS has called and spoken to the
Dealer Customer (known as the "Customer Satisfaction Call") and the Dealer
Customer acknowledges 100% satisfaction with the IMS Product and its
installation and/or performance.
(b) Provided that IMS submits a settlement transaction as required above, MBNA
shall credit the Settlement Account within (i) seven (7) business days after
MBNA's receipt of such settlement file on Qualified Purchases generated from
Loan Accounts opened as a result of a direct mail application, a take-one
application, or a telemarketing application; and (ii) two (2) business days
after MBNA's receipt of such settlement file on Qualified Purchases generated
from Loan Accounts opened as a result of an internet application or any other
type of application where the Dealer Customer receives the appropriate
disclosures at the point of sale; provided however that MBNA may delay creating
such Settlement Account until it reasonably believes that the relevant Customers
have received the legally-required disclosures or may expedite the crediting of
such Settlement Account if the relevant Customer has already received the
legally-required disclosures.
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5. ACCOUNT INFORMATION
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(a) As a result of the procedures that IMS and APS may use pursuant to this
Agreement to market and refer Loan Account applications, IMS and/or APS may have
in their possession from time to time information contained in Loan Account
applications or concerning MBNA's Loan Accounts with Customers ("Account
Information"). IMS and APS agree that Account Information is confidential and
proprietary to MBNA and that neither IMS not APS has any property right or
interest in any Account Information. Account Information becomes a part of
MBNA's own files and MBNA will not use this separate information in a manner
that would imply an endorsement by IMS or APS. IMS and APS agree to hold Account
Information in strict and absolute confidence and agree not to provide access
to, trade, give away, barter, lend, send, sell or otherwise disclose
(collectively "Transfer") any Account Information and shall not make any copies
of the same of any type. For example, IMS may not Transfer to any entity or
person any list containing Account Information. Notwithstanding this Section 5
(but subject to Section 2), IMS and APS may use or Transfer any information it
obtains in connection with the sale of IMS Products in the ordinary course of
its business (excluding information relating directly to or identifying a
Customer's participation in the Program and/or to the Loan Accounts).
(b) Neither IMS nor APS may use Account Information for any purpose not directly
necessary for its performance under this Agreement IMS and APS both agree to
comply with any security precautions reasonably requested of MBNA to maintain
the security of Account information. Both IMS and APS shall permit access to
these materials only to employees who need such access to perform their duties.
IMS and APS each warrant that it and all its employees who work with Account
Information shall be made aware of the obligations contained in this Section 5
and shall be under strict legal obligation not to copy, Transfer or make any use
of any Account Information other than as specifically approved by this Section
5.
6. REFUNDS/COMPLAINTS
------------------
(a) All refunds due to Dealer Customers regarding IMS Products purchased with a
Loan Account, other than those refunds arising from complaints about such IMS
Products, shall be promptly remitted by IMS to MBNA for crediting.
(b) MBNA shall promptly resolve Dealer Customer complaints regarding the grant
or denial of applications for Loan Accounts and the on-going servicing of Loan
Accounts.
(c) IMS shall (with the assistance of APS and the applicable Qualified Dealer)
resolve all Customer complaints regarding IMS Products financed under the
Program within 45 days from the date the complaint arises (i.e., the date IMS
receives notice of the complaint from MBNA or a Customer). In the event that a
Customer complaint is not resolved as set forth below within the 45 day period,
then IMS and APS agree that MBNA may debit the Settlement Account for payment of
all disputed amounts, which includes related finance charges and account fees
and those shipping and handling fees applicable to return shipment. If MBNA does
not debit the Settlement Account, then, upon MBNA's request, IMS shall pay to
MBNA all such disputed
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amounts within three business days. IMS shall provide prompt feedback on the
status of each such complaint when requested by MBNA. For purposes of this
subsection 6(c), IMS has resolved a Customer complaint when IMS has thoroughly
investigated the complaint and:
(i) has determined that the complaint is valid and: (I)has
credited such disputed amount to MBNA for the relevant
Customer's Loan Account, or has authorized MBNA to debit the
Settlement Account for such disputed amount and there are
sufficient funds in the Settlement Account for such debit; or
(II) has agreed with the Customer to repair or replace the IMS
Product or otherwise satisfy the Customer; or
(ii) has determined that the Customer's complaint is invalid (i.e.,
the Customer is not entitled to any remedy pursuant to IMS's
terms and conditions of sale, any express or implied warranty,
or applicable law) and has provided written evidence to MBNA
supporting such determination (e.g, evidence adequately
refuting a Customer's claim of non-acceptance or non-delivery
of the IMS Product).
(d) IMS and MBNA shall negotiate in good faith to reduce the frequency and
severity of complaints regarding IMS Products financed under the Program. If the
frequency or severity of complaints are unacceptable to MBNA, MBNA reserves the
right to terminate the Agreement upon thirty (30) days notice to IMS and APS.
7. REPRESENTATIONS AND WARRANTIES
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(a) Mutual Representations: IMS, APS and MBNA each represents and warrants to
the other that as of the Effective Date and throughout the term of this
Agreement:
1. It is duly organized, validly existing and in good standing.
2. It has all necessary power, licenses, and authority to execute and
deliver this Agreement and to perform its obligations under this
Agreement.
3. This Agreement constitutes a legal, valid and binding obligation of
such party, enforceable against such party in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, receivership, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by
general principles of equity.
4. No consent, approval or authorization from any third party is required
in connection with the execution, delivery and performance of this
Agreement, except such as have been obtained and are in full force and
effect.
5. The execution, delivery and performance of this Agreement by such
party will not constitute a violation of any contract, law, rule,
regulation, court order or ruling applicable to such party.
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6. It has the right and power to license its respective Trademarks to the
other party for use as contemplated by this Agreement.
(b) IMS Representations: IMS additionally represents and warrants, as
applicable, to MBNA that as the Effective Date and throughout the term of the
Agreement:
1. IMS will comply with its policies and procedures related to the sale
of IMS Products (including but not limited to contract or terms of
sale, warranties, express or implied, and corporate fraud policies)
and will give MBNA 60 days prior notice of any material change to such
policies.
2. The IMS Products purchased under the Program will be priced the same
by each Qualified Dealer as those IMS Products purchased with cash or
using any other extension of credit and each Qualified Dealer will not
charge a fee to any Dealer Customer for any aspect of the financing
services offered under the Program.
3. Qualified Dealers who market IMS Products through door-to-door
marketing and retail stores are properly licensed as required by any
local, state or federal law, rule or regulation and are in compliance
with all such laws, rules and regulations.
8. PROGRAM ADJUSTMENTS
-------------------
A summary of the current features of the Program is set forth in Schedule A.
MBNA reserves the right to make periodic adjustments to the Program and its
terms and features.
9. CROSS INDEMNIFICATION
---------------------
IMS, APS and MBNA each will indemnify and hold harmless the others, their
directors, officers, agents, employees, affiliates, insurers, successors and
assigns (the "Indemnitees") from and against any and all loss, liability,
damage, expense. cause of action, claim, and the reasonable and actual costs
incurred in connection therewith ("Losses"), resulting from the material breach
of this Agreement by IMS, APS or MBNA, respectively as the case may be, or its
directors, officers, employees or agents. IMS will indemnify and hold harmless
MBNA and its Indemnitees from and against any and all Losses arising from: (i)
any actual or alleged damages to any person or property arising from any IMS
Product; (ii) any fraudulent act of any Dealer Customer regarding a Loan Account
application; and (iii) any fraudulent act of IMS or its employees or agents and
(iv) a Qualified Dealer's failure to comply with its Dealer Agreement. APS will
indemnity and hold harmless MBNA and its Indemnitees from and against any and
all Losses arising from any fraudulent act of APS or its employees or agents.
MBNA will indemnify and hold harmless APS and IMS and its Indemnitees from and
against any and all Losses arising from any fraudulent act of MBNA or its
employees or agents. Each party shall promptly notify the other party in the
manner provided herein upon learning of any claim or complaints that may
reasonably result in the indemnification by the other party.
10. CONFIDENTIALITY OF AGREEMENT
----------------------------
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The master confidentiality agreement between the parties, dated
_________________ ("Master Confidentiality Agreement"), sets forth the
respective confidentiality obligations of MBNA and IMS. For the avoidance of
doubt, the terms of this Agreement, any proposal, financial information and
proprietary information provided by or on behalf of one party to the other party
prior to, contemporaneously with, or subsequent to, the execution of this
Agreement shall be considered "Confidential Information" within the meaning of
the Master Confidentiality Agreement. The parties agree that, notwithstanding
anything in the Master Confidentiality Agreement to the contrary, the term of
the Master Confidentiality Agreement is hereby amended to expire on the later of
the termination of this Agreement or the Master Confidentiality Agreement.
11. TERM OF AGREEMENT
-----------------
The initial term of this Agreement will begin on the Effective Date and end at
midnight on the third year anniversary of the Effective Date. This Agreement
will automatically extend at the end of the initial term or any renewal term for
successive two-year periods, unless either party gives written notice of its
intention not to renew at least ninety (90) days, but not more than one hundred
eighty (180) days, prior to the last date of such term or renewal term, as
applicable. Notwithstanding the above, either party may terminate this Agreement
at the end of the Pilot Period by giving notice to the other not later than 30
days prior to the end of the Pilot Period.
12. STATE LAW GOVERNING AGREEMENT
-----------------------------
This Agreement shall be governed by and subject to The laws of the State of
Delaware (without regard to its conflict of laws principles) and shall be deemed
for all purposes to be made and fully performed in Delaware.
13. TERMINATION
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(a). Breach: Notice: Cure: In the event of any material breach of this Agreement
by MBNA, IMS may terminate this Agreement by giving notice, as provided herein,
to the breaching party. This notice shall: (i) describe the material breach; and
(ii) state the party's intention to terminate this Agreement. if the breaching
party does not cure or substantially cure such breach within sixty (60) days
after receipt of notice, as provided herein (the "Cure Period"), then this
Agreement shall terminate sixty (60) days after the Cure Period.
(b). Insolvency: If MBNA, APS or IMS becomes insolvent in that its liabilities
exceed its assets, or is adjudicated insolvent, or takes advantage of or is
subject to any insolvency proceeding, or makes an assignment for the benefit of
creditors or is subject to receivership, conservatorship or liquidation then
MBNA (if the insolvent party is APS or IMS) or IMS or APS (if MBNA is the
insolvent party) may immediately terminate this Agreement.
(c). Effect on Trademarks: Upon termination of this Agreement, the parties
shall, in a manner consistent with Section 13(d) of this Agreement, cease to use
the other's Trademarks. Each
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party agrees that upon such termination it will not claim any right, title, or
interest in or to the Trademarks provided pursuant to this Agreement. However,
MBNA may conclude all solicitation that is required by law.
(d). MBNA Right of Prior Review: MBNA shall have the right to prior review and
approval of any notice in connection with, relating or referring to the
termination of this Agreement to be communicated by IMS, APS or any IMS
Affiliate to the Dealers or Dealer Customers. Such approval shall not be
unreasonably withheld. Upon termination of this Agreement, IMS shall not attempt
to cause the removal of the IMS Trademarks from any person's credit devices,
checks or records of any Customer existing as of the effective date of
termination of this Agreement.
14. LIMITATION OF LIABILITY
-----------------------
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECULATIVE,
INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED
TO LOST PROFITS OR LOST REVENUE, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY
OF SUCH DAMAGES, IN CONNECTION WITH PERFORMANCE UNDER THIS AGREEMENT.
15. MISCELLANEOUS
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(a) This Agreement cannot be amended except by written agreement signed by the
authorized agents of all parties hereto.
(b) The obligations in Sections 5, 6, 9, 10, 13(c), 13(d) and 14 shall survive
any termination of this Agreement.
(c) The failure of any party to exercise any rights under this Agreement shall
not be deemed a waiver of such right or any other rights.
(d) The section captions are inserted only for convenience and are in no way to
be construed as part of this Agreement.
(e) If any part of this Agreement shall for any reason be found or held invalid
or unenforceable by any court or governmental agency of competent jurisdiction,
such invalidity or unenforceability shall not affect the remainder of this
Agreement which shall survive and be construed as if such invalid or
unenforceable part had not been contained herein.
(f) All notices relating to this Agreement shall be in writing and shall be
deemed given (I) upon receipt by hand delivery, facsimile or overnight courier,
or (ii) three (3) business days after mailing by registered or certified mail,
postage prepaid, return receipt requested. All notices shall be addressed as
follows:
(1) If to IMS: (2) If to MBNA:
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Innovative Medical Services, Inc. MBNA America Bank, N.A.
0000 Xxxxxxxxx Xxx 000 Xxxxxxxxxx Xxxx, XX 1522
Xx Xxxxx, XX 00000 Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Attention: Director, Sales Finance
Title: President
Fax#: Fax #: (000) 000-0000
(3) If to APS:
Automated Payment Services, Inc.
000 Xxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Title: Executive Vice President
Fax#: 000-000-0000
Any party may change the address to which communications am to be sent by giving
notice, as provided herein, of such change of address.
(g) With the exception of the Master Confidentiality Agreement, this Agreement
contains the entire agreement of the parties with respect to the matters covered
herein and supersedes all prior promises and agreements, written or oral, with
respect to the matters covered herein. Without the prior written consent of
MBNA, which shall not be unreasonably withheld, neither IMS nor APS may assign
any of its rights or obligations under or arising from this Agreement. MBNA may
assign or transfer its rights and/or obligations under this Agreement without
the written consent of IMS or APS.
(h) MBNA and IMS are not agents, representatives or employees of each other and
neither party shall have the power to obligate or bind the other in any manner
except as otherwise expressly provided by this Agreement.
(i) Nothing expressed or implied in this Agreement is intended or shall be
construed to confer upon or give any person, including Dealers, other than IMS,
APS and MBNA, their successors and assigns, any rights or remedies under or by
reason of this Agreement.
(j) Neither party shall be in breach hereunder by reason of its delay in the
performance of or failure to perform any of its obligations herein if such delay
or failure is caused by: (i) strikes, acts of God or the public enemy, riots,
incendiaries, interference by civil or military authorities, or (ii) the other
parry's failure to comply with applicable laws, rules, or regulations.
(k) IMS and APS agree to provide MBNA with such information, assistance and
further assurances as may be reasonably requested by MBNA in connection with the
Program.
(l) This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, each of the parties, by its representative, has executed
this Agreement as of the Effective Date.
MBNA AMERICA BANK, N.A. INNOVATIVE MEDICAL
SERVICES, INC.
By: XXXXX X. XXXXXX By: XXXXXXX X. XXXXX
--------------- ----------------
Name: XXXXX X. XXXXXX Name: XXXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT Title: PRESIDENT
Date: 8-15-00 Date: 8/14/00
AUTOMATED PAYMENT SERVICES, INC.
By XXXXX XXXXX
Name XXXXX XXXXX
Title EXECUTIVE VICE PRESIDENT
Date: 8/15/00
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Exhibit 1
MUTUAL CONFIDENTIALITY AGREEMENT
THIS AGREEMENT, dated as of July 12,2000 ("Agreement') between MBNA
America Bank, N.A., a national banking association having its principal place of
business in Wilmington, Delaware ("MBNA America"), and Innovative Medical
Services, mc. ("Company") having its principal office in El Cajon, California.
Recitals
The Company is in the business of offering certain products and services
("Company Products and Services"). MBNA America is in the business of offering
certain financial products and services ("MBNA America Products and Services").
MBNA America and the Company are considering a potential business transaction
involving the marketing of Financing Products and Services to prospective and
present customers of the Company and the marketing of the Company's Products and
Services to customers of MBNA America and other individuals identified by MBNA
America (the "Transaction").
To better assess the proposed Transaction, the parties shall from time to time
directly or indirectly make available to each other Customer lists, documents,
individual account information, computer programs, trade secrets, business
practices and techniques, strategies, development and/or marketing plans which
are proprietary or confidential (collectively, the "Information").
NOW, THEREFORE, for valuable and lawful consideration, the receipt and
legal sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Each party shall use the Information only for the purposes and in
accordance with the terms and conditions established between MBNA America and
the Company under this Agreement and in any writings referencing this Agreement
that accompany any Information. Neither party shall have the authority to use
Information received by such party for any other purpose or in any other manner.
Each party agrees to secure and safeguard the Information in strict accordance
with this Agreement and to permit access to the Information only to their
respective employees who need such access to perform job duties in connection
with the Transaction. Each party shall use best efforts to preserve the
confidentiality of the Information. Each party expressly acknowledges and agrees
that it has no property right or interest whatsoever in the Information of the
other party.
2. The parties agree that upon completion of analysis of the Transaction,
or upon termination of this Agreement or otherwise at either party's request,
the parties shall, as applicable:
(a) Within 72 hours after receiving a request therefor, purge and
destroy all Information from its primary Systems;
(b) Within 30 days after receiving a request therefor, destroy all
secondary data storage media containing any Information; and
(c) Within 30 days after receiving a request therefor, destroy all
remaining Information, including any and all full or partial copies, or
reproductions thereof in any medium whatsoever.
3. Destruction of Information shall occur in accordance with the terms of
this Agreement. The parties agree that destruction of all Information could
include, but is not limited to, the following:
(a) If requested to do so, degauss or physically destroy, through a
bonded service company, the original and all whole or partial copies of any
Information contained on any type of media, including but not limited to
tape or diskette;
(b) If requested to do so, delete originals and all whole or partial
copies of any Information contained on any storage media of the receiving
party; and
(c) If requested to do so, shred originals and all whole and partial
copies of any Information contained on any type of hardcopy media.
4. Each party shall hold the Information in strict and absolute confidence,
shall not trade; give away, barter, lend, send, sell (collectively, "transfer")
any Information. Neither party shall make any copies of the Information of any
type whatsoever, except as absolutely required for the completion of the
project(s) as agreed upon between the parties. In the event either party
generates any Information in any medium whatsoever, each party hereby agrees
that all such Information generated by the generating party shall be covered by
all the terms and conditions of this Agreement. Each party agrees that it will
not provide or disclose any Information to any other organization or individual
under any circumstances, and specifically but not by way of limitation agrees
that no subcontractor shall be provided any Information.
5. (a) Neither party's obligation under this Agreement shall apply to
Information:
(i) Known to the receiving party at the time of the disclosure;
(ii) Entering the public domain but not as a result of a breach of
this Agreement;
(iii) Acquired by the receiving party without written restrictions
against disclosure from a third party which, to the receiving party's
knowledge, is not prohibited from disclosing the Information; or
(iv) Independently developed by the receiving party without use of the
disclosing party's Information.
(b) In the event a party hereto receives a request to disclose all or any
of the Information pursuant to a subpoena, order of court of competent
jurisdiction or by judicial or administrative agency or legislative body or
committee, such subpoenaed party agrees to:
(i) Immediately notify the party whose Information is sought of the
existence, terms and circumstances surrounding such request;
(ii) Consult with the subpoenaed party on the advisability of taking
legally available steps to resist or narrow such request; and
(iii) If disclosure of such Information is required or deemed
advisable, exercise its best efforts to obtain an order or other reliable
assurance that confidential treatment will be accorded to such portion of
the Information to be disclosed as the party whose Information is sought
designates.
Each party shall be entitled to reimbursement for its expenses, including
reasonable fees and expenses of its counsel, in connection with action taken
pursuant to this paragraph by law or by any governmental regulatory authority,
but is otherwise subject to all restrictions described herein.
6. In view of the confidential nature of the Information, each party
warrants that all employees, agents and officers who work with the Information
shall be made aware of the obligations contained in this Agreement and shall be
under strict legal obligation not to copy, transfer or disclose the Information,
or make any other use of the Information other than as specifically described
herein. Each party shall be responsible for any damages incurred by the other
party that result from breach of this Agreement by the employees, officers,
subcontractors or agents. To ensure the integrity of Information, the parties
shall, as applicable, use current virus detection programs to test all software
that the party shall use to transmit Information to one another for viruses,
"time bombs," "Trojan Horses" or other disabling features which in any way may
adversely impact the recipient's use of the software (each a "Software Attack").
The parties warrant that during production, testing or maintenance of software
for the purpose of transferring Information to one another, the parties shall
not input, insert or otherwise program, not cause to be input, inserted or
otherwise programmed, any mechanism that may provide a means for unauthorized
access into such other party's systems. Each party shall be responsible for any
and all losses or costs incurred by the other as a result of such Software
Attacks or unauthorized access.
7 If either party: (i) becomes insolvent in that liabilities exceed assets,
(ii) is adjudicated insolvent or bankrupt, (iii) takes advantage of or is
subjected to any insolvency or bankruptcy proceeding, (iv) makes an assignment
for the benefit of creditors, (v) is subject to any receivership,
conservatorship or liquidation, (vi) or in any other way has its activities or
powers restricted by vi flue of the exercise of supervisory powers vested in any
governing person or body, then in such event the other parry may, in its sole
discretion, at any time during the continuation of such status or proceeding
immediately terminate this Agreement. In no instance shall any Information
constitute an asset or property of the other party in any such proceeding which
may be assigned or which may accrue to any estate, person, trustee, receiver,
creditor court or to any creditor appointed committee or receiver. All
confidentiality provisions shall survive the termination of this Agreement.
8. Notification as to breach of this Agreement shall be by certified mail,
return-receipt requested, at the following address or at such other address as
of which the other party is notified in conformance with this paragraph:
To: Innovative Medical Services, Inc. To:MBNA America Bank, N.A.
0000 Xxxxxxxxx Xxx 0000 X. Xxxx Xxxxxx, Xxxxxxxx
Xx Xxxxx, Xxxxxxxxxx 00000 Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx Attn: Corporate Information Security
With a Copy to: With a Copy to:
MBNA America Bank, N.A.
0000 X. Xxxx Xxxxxx, Xxxxxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Counsel
0.Xx the event of any inconsistency between this Agreement and any prior
agreements, oral or written, on the subject matter herein, this Agreement shall
prevail. Amendment of this Agreement must be in writing si8ned by both MBNA
America and the Company. This Agreement supplements any and all confidentiality
agreements entered into by the parties, unless specifically named herein. This
Agreement only establishes the agreement between the parties as to
confidentiality and does not establish agreement as to any other matters.
10. The laws of Delaware govern this Agreement. Each party consents to
submit to the jurisdiction of the courts of the State of Delaware and of the
United States of America located in Delaware for any actions, suits or
proceedings arising out of or relating to this Agreement.
11. Each party agrees that the other would suffer immediate and irreparable
harm in the event any Information is used in a manner not permitted by this
Agreement. If a of the provisions of this Agreement happens or is threatened,
the non-breaching party shall be entitled to injunctive relief restraining the
other party from such breach or threatened breach and to enforce the provisions
herein in either a state or federal court located in Delaware. Nothing herein
shall be construed as prohibiting either parry from pursuing any other remedy on
account of such breach or threatened breach.
12. Each party agrees that it shall make no reference to any contractual
arrangements with the other party or to the other party in any other mariner in
any advertising, promotional literature or other public statement, in any medium
whatsoever, without the prior written consent of the other party. In the event
of a breach of this provision, the non-breaching party may terminate this
Agreement and/or any agreements through which the breaching party provides
services to the non-breaching party. All provisions regarding confidentiality
shall survive the termination of this Agreement.
13. If any court or governmental agency of competent jurisdiction for any
reason shall find or hold any part of this Agreement invalid or unenforceable,
such invalidity or unenforceability shall not affect the remainder of this
Agreement which shall survive and be construed as if such invalid or
unenforceable part of portions had not been contained herein.
14. This Agreement shall be binding upon the parties hereto, their
successors, personal representatives and assigns. This Agreement shall not be
altered, assigned or modified except by written instrument executed by the
parties hereto This Agreement shall survive termination of all other agreements
or arrangements between MBNA America and the Company.
This Agreement shall be effective when signed by a duly authorized agent of
each party. Executed this Twelfth Day of July 2000.
FOR: Innovative Medical Services, Inc.
BY: XXXXXXX X. XXXXX
Signature
Xxxxxxx X. Xxxxx, President & CEO
Printed Name & Title
FOR: MBNA America Bank, N.A
BY:
Signature
Printed Name & Title
SCHEDULE A
TERMS AND FEATURES
Subject to (1) MBNA's right to vary the Program and its terms and features, and
(ii) the applicable agreement entered into between MBNA and each Customer:
LOAN ACCOUNTS
1. There is no annual fee.
2. APRs may range from 12.99% to 27.99% depending on the Customer's income and
creditworthiness.
3. Loan Accounts may be used for any bona fide purpose, except they cannot be
used solely to payoff or paydown another MUNA account.
4. MBNA may offer Customers the opportunity to obtain additional advances on
the Loan Accounts.
5. MBNA may offer Customers other benefits under the Program, such as credit
insurance and travel services.
[NOTE TO SEC EXHIBIT 10.9: THE ABOVE INFORMATION WAS LEFT BLANK IN THE ORIGINAL
DOCUMENT]
SCHEDULE B
SETTLEMENT INFORMATION FOR ALL ACH TRANSMISSIONS
Name of Account Holder: APS
Name of Bank: ______________
Account #: ______________
ABA #: ______________
Withdrawals by: ______________
