Exhibit 10.14
PreCash(R) Retail Agreement
This Agreement ("Agreement") is made between PreCash Corporation, an Oregon
corporation with its principal business address at 0000 Xxxx Xxxx Xxxxx, Xxxxx
000, Xxxxxxx, XX 00000 ("PreCash") , and Q Comm International, Inc., a Utah
corporation with its principal business address at 0000 Xxxxx 00000 Xxxx, Xxxx,
Xxxx 00000 ("Q Comm").
RECITALS
WHEREAS, PreCash has developed a payment system (the PreCash(R) Payment
System) that it markets under the registered trademark PreCash, using
ANSI-standard, magnetic-striped cards denominated PreCash Cards, that enable
cardholders to deposit funds (by cash, check, credit or debit card) at a point
of sale, into various electronic accounts maintained by card issuers, such as
prepaid wireless accounts;
WHEREAS, Q Comm desires to process electronic payment transactions for
PreCash Cardholders at designated retail locations.
NOW THEREFORE, for the good and sufficient consideration contained
herein, the parties agree as follows:
AGREEMENT
1. Definitions
"Authorized PreCash Transaction" means a PreCash Transaction for which PreCash
has issued an authorization number, and for which no subsequent reversal request
was processed within the time period permitted in the Training Materials.
"Month" or "Quarter," wherever used in this Agreement, whether capitalized or
not, means that period commencing at 12:00 a.m. Pacific on the first day of the
month/quarter and ending at 11:59:59 p.m. Pacific on the last day of the
month/quarter.
"POS System" means the point-of-sale terminal or computer system used by Q Comm
to process PreCash Transactions.
"PreCash Cardholder" or "Cardholder" means a customer of a PreCash Card Issuer
who has associated a PreCash Card account number with a service account
maintained by the PreCash Card Issuer, for the purpose of replenishing funds to
the service account.
"PreCash Card Issuer" means a service provider that accepts payments to customer
accounts via the PreCash Payment System. The service provider's customers use
PreCash Cards to make payments to their accounts. Those customers are referred
to as "PreCash Cardholders." From time to time, PreCash may also serve as a
PreCash Card Issuer.
PreCash Confidential Page 1
"PreCash Funds" means the dollar value of Authorized PreCash Transactions for
the relevant time period as measured by PreCash's records of successful/approved
transactions originating from the Q Comm Merchants. With respect to a particular
PreCash Transaction, the PreCash Funds equal the dollar value of the
transaction, not including taxes or convenience fees applied by Q Comm.
"PreCash Services" means the collection of payments from PreCash Cardholders,
the processing and transmission of electronic messages to PreCash that enable
PreCash to apply the payments of PreCash Cardholders to various accounts
maintained by PreCash Card Issuers, and the transmission of collected payments
to PreCash.
"PreCash Transaction" means: (a) obtaining payment from a PreCash Cardholder in
the amount consistent with any PreCash Card Issuer program requirements (the
"Payment Amount"), (b) swiping the PreCash Card or entering the card number and
expiration date through the POS System, (c) generating and sending an electronic
message to PreCash's computers to allow validation and recording of the Payment
Amount, and (d) providing a receipt (in a form approved by PreCash) to the
Cardholder.
"Q Comm Merchants" means those merchants that have a payment processing
relationship with Q Comm only at Advantage Wireless corporate owned stores or
Advantage Wireless authorized agents, whether such relationship exists currently
or after the effective date of this Agreement.
2. Q Comm Obligations
2.1 PreCash Services
2.1.1 In General. Q Comm shall provide PreCash Services at its Q Comm
Merchants during normal business hours, and without discrimination, to all
PreCash Cardholders. Q Comm shall ensure that PreCash is continually and
reasonably informed of any adds, moves or changes to the Q Comm Merchants.
Unless otherwise required by applicable law, the Q Comm Merchants shall not
require Cardholders to present any additional form of identification in order to
honor the PreCash Card, but may require identification to accept payment in the
form of a check or credit/debit card, in accordance with the Q Comm Merchants'
standard procedures.
2.1.2 Authorization; Transaction Record. When processing a PreCash
Transaction, Q Comm shall:
o Submit an authorization request to PreCash through the POS
System and complete a transaction only upon receipt of an
authorization number;
o Deliver a true and complete copy of a transaction
acknowledgement to the Cardholder containing the following
information:
(i) the Cardholder's account number;
(ii) an authorization code;
(iii) Store's name;
(iv) Store's location (including store number, if any, and
address);
(v) the amount of the transaction;
PreCash Confidential Page 2
(vi) the local date and time of the transaction;
(vii) a PreCash identifier; and,
(viii) if the PreCash Transaction is a Taxable Sale, the
Store shall deliver to the Cardholder a true and
complete copy of a receipt for the Tax;
o Comply with the Training Materials. The Training Materials may
be amended from time to time by PreCash in its sole
discretion, and are incorporated herein and made a part of
this Agreement by reference. The portion of the Training
Materials relating to Taxable Sales is attached hereto as
Exhibit B, which Exhibit shall be deemed to be automatically
amended and superceded concurrently with any amendment to the
Training Materials.
Q Comm shall not permit stand-in or delayed processing. Q Comm shall not process
PreCash Transactions through voice authorizations without prior approval from
PreCash.
2.1.3 Accuracy of PreCash Transactions. Q Comm is responsible for
ensuring the accuracy of all PreCash Transactions transmitted to PreCash for
authorization. Q Comm shall indemnify and hold PreCash harmless from any claims
arising from inaccurate, invalid or fraudulent transactions recorded by PreCash
as a result of errors, fraud or other misuse committed by Q Comm or others
within the Q Comm's control. Authorized PreCash Transactions may only be
reversed within the ten (10) minute window following the time at which PreCash
issued the authorization number.
2.1.4 Taxable Sales. Certain PreCash Transactions are classified as
Taxable Sales in the detailed instructions for processing PreCash Transactions
that are provided to the Q Comm Merchants by PreCash (such instructions, as
amended from time to time hereafter, "Training Materials"), the relevant portion
of which Training Materials is attached hereto as Exhibit B. Before providing
PreCash Services for Taxable Sales, Q Comm shall insure that the Q Comm
Merchants comply with the requirements described in this Section and Section
2.1.5 following. The Q Comm Merchants shall treat each Taxable Sale as a
wholesale purchase by the Store from the applicable PreCash Card Issuer in
exchange for the Payment Amount, immediately followed by a retail sale by the
Store to the Cardholder. With respect to each PreCash Transaction which is a
Taxable Sale, the Store shall provide the following additional PreCash Services,
all in accordance with applicable law: (a) computing the state and local sales,
use, excise and other similar transaction taxes which The Store is required or
permitted to collect from the Cardholder with respect to the Taxable Sale
(collectively, the "Tax"), (b) collecting the Tax from the Cardholder, (c)
reporting and remitting the Tax to the applicable taxing authorities, and (d)
providing the Cardholder with a receipt for the Tax. The Store shall be solely
responsible for reporting all Taxes due and owing by it to the proper taxing
authorities and shall be responsible for, and shall pay, such Taxes in
accordance with applicable law.
2.1.5 Resale Exemption Evidence. Before performing any PreCash Services
for Taxable Sales with respect to the PreCash Card Issuer(s) designated in
Exhibit B, Q Comm shall deliver to such PreCash Card Issuer the resale
certificate, direct-pay number, or other evidence, if any ("Resale Exemption
Evidence"), which is required by applicable law to permit the PreCash Card
Issuer to effect Taxable Sales to Cardholders through Q Comm without collecting
Tax from Q Comm. Q Comm shall renew any Resale Exemption Evidence as required by
law from time to time and deliver the renewed evidence to each applicable
PreCash Card Issuer. If Q Comm fails to deliver Resale Exemption Evidence to any
PreCash Card Issuer, or to timely deliver renewed Resale Exemption Evidence,
then PreCash shall suspend the authority of Q Comm to process Taxable Sales with
respect to such PreCash Card Issuer.
PreCash Confidential Page 3
2.2. Transfer of Funds from Q Comm to PreCash
2.2.1 Transfer. The PreCash Funds shall be the property of PreCash
immediately upon receipt by Q Comm. Q Comm shall transfer the PreCash Funds into
the bank account identified on Exhibit A hereto (the "Q Comm Deposit Account")
so as to ensure adequate funds availability for the debit transaction detailed
in Section 2.2.2 below. If the PreCash Transaction is a Taxable Sale, the Tax
shall not be the property of PreCash and shall not be transferred to the Q Comm
Deposit Account; rather, the Tax shall be handled in accordance with Section
2.1.4 above.
2.2.2 ACH Debit; Recording Period. Q Comm authorizes PreCash to debit
the PreCash Funds from the Q Comm Deposit Account. PreCash shall calculate the
amount to be debited based on PreCash's record of PreCash Transactions completed
successfully during the 24-hour period ending at 3 p.m. Pacific time each
business day and each vacation or weekend day preceding the next business day
("Recording Period"). PreCash shall initiate a debit request through the
Automated Clearing House ("ACH") on each business day that ACH is operational
and shall debit the Q Comm Deposit Account for the Authorized PreCash
Transactions recorded--at the earliest--during the previous Recording Period.
PreCash shall provide Q Comm with an Internet-based account summarizing each
Recording Period. Q Comm may verify the amount debited by PreCash by accessing Q
Comm Reports via the Internet.
2.2.3 Fees for Non-Sufficient Funds. If the Q Comm Deposit Account has
insufficient funds to permit PreCash to debit all amounts due to PreCash,
including PreCash Funds and Processing Fees, PreCash may immediately suspend,
without prior notice, Q Comm's ability to process PreCash Transactions and
charge Q Comm a $10 processing fee for each PreCash Transaction for which
amounts are due to PreCash, with a daily minimum of $25. To reinstate PreCash
Transaction processing, Q Comm shall remit funds owed to PreCash within three
(3) business days of suspension, including fees owing as a result of
insufficient funds, via wire transfer. After PreCash receives the amounts owed
to it, PreCash may, in its sole discretion, reinstate Q Comm's ability to accept
PreCash Cards, in accordance with Section 2.2.4 below. If Q Comm fails to remit
the funds pursuant to this Section 2.2.3, PreCash may terminate this Agreement
immediately upon written notice.
2.2.4 Security. Prior to reinstatement, PreCash may require Q Comm to
provide a non-interest bearing security deposit or other security mechanism
acceptable to PreCash, in its sole and reasonable discretion. The security
deposit or other mechanism to ensure payment shall contain an amount of funds
specified by PreCash and reasonably related to Q Comm's historical and projected
transaction volume; Q Comm shall maintain the security deposit at such level
throughout the remainder of the term of this Agreement, unless earlier released
by PreCash. PreCash may withdraw funds from such security deposit at any time
without notice to Q Comm in the amount of any obligation of Q Comm to PreCash
hereunder. Upon termination of this Agreement, the security deposit or other
mechanism shall remain in effect for three months, at the end of which all
remaining funds will be returned to Q Comm.
PreCash Confidential Page 4
2.2.5 Debit Verification Process; Notice. Q Comm shall provide PreCash
oral notice, with confirmation by written notice, of any discrepancies in the
amount that PreCash withdraws from the Q Comm Deposit Account within three
business days of PreCash's debit through the ACH network. Q Comm shall provide
acceptable supporting documentation to PreCash within five business days after
notice of a discrepancy is received. If Q Comm fails to provide the required
notices, Q Comm irrevocably waives all claims against PreCash for any disputed
withdrawal. If PreCash determines the source of the discrepancy to be as a
result of a processing error by PreCash, PreCash will submit reimbursements the
next business day for posting to the Q Comm's account.
2.3 Team Merchandising. Q Comm shall use commercially reasonable efforts to
engage in "Team Merchandising" activities with PreCash for the
mutually-beneficial purpose of increasing the number of PreCash Transactions
processed at Q Comm's Q Comm Merchants. The nature and extent of such efforts
shall be subject to mutual agreement of the parties.
3. PreCash Obligations
3.1 PreCash Cardholder Support. PreCash shall cause PreCash Card Issuers to
provide telephone-based customer service to handle Cardholder problems or
complaints relating to the underlying prepaid services supported by the PreCash
Transactions.
3.2 Account Management. PreCash shall assign sufficient resources to ensure
that Q Comm's inquiries relating to PreCash Services are handled promptly and
effectively.
3.3 Training. PreCash shall provide "train the trainer" support so as to
assist Q Comm with properly and sufficiently training its employees on the
processing of PreCash Transactions.
3.4 IVR Locator. PreCash has developed an IVR (interactive voice response)
system capable of providing PreCash Cardholders with access to PreCash refill
locations within a designated five-digit zip code. PreCash Cardholders access
the IVR system by telephone: upon connecting with the IVR system, the PreCash
Cardholder enters the desired zip code and the IVR system returns a list of five
PreCash refill locations in that zip code or the nearest zip code(s). The
technical specifications and parameters for the IVR system were created in
cooperation with PreCash Card Issuers and are subject to change.
3.5 Marketing Support. PreCash shall provide in-store marketing collateral,
such as window, terminal and door decals, banners, counter or stand-alone
displays, in an amount and type reasonably determined by PreCash. The marketing
collateral may be co-branded with PreCash Card Issuers. Any co-branding between
PreCash and Q Comm or Q Comm and a PreCash Card Issuer will be subject to a
separate agreement or understanding on cost-sharing.
3.6 Facilitate Relationships with PreCash Card Issuers. In the event Q Comm
desires to enter into promotional activities with PreCash Card Issuers or
otherwise obtain access to the customer base of the PreCash Card Issuers in
furtherance of the purposes of this Agreement, PreCash agrees to facilitate a
meeting between Q Comm and the PreCash Card Issuer(s). PreCash shall also
facilitate communications between Q Comm and PreCash Card Issuers regarding
distribution and pricing of an inventory of PreCash Cards.
PreCash Confidential Page 5
3.7 Team Merchandising. PreCash shall use commercially reasonable efforts
to engage in "Team Merchandising" activities with PreCash for the
mutually-beneficial purpose of increasing the number of PreCash Transactions
processed at Q Comm's Q Comm Merchants. The nature and extent of such efforts
shall be subject to mutual agreement of the parties.
4. Compensation to Q Comm
4.1 PreCash reserves the right to review, within six (6) months of the
Effective Date of this Agreement, the total fees being assessed to Q Comm
merchants by Q Comm and other parties.
4.2 Q Comm Merchants may charge the Cardholder a non-discriminatory fee
("Convenience Fee") at the time of the completed transaction. The Convenience
Fee may not be deducted from the Payment Amount or any Tax; rather, it should be
collected separately and in addition to, the Payment Amount and any Tax. This
Convenience Fee shall not be included in the PreCash Funds Q Comm is required to
transfer to PreCash under Section 2.2. So that Cardholders may be ensured at
least a minimal level of consistency among Q Comms processing PreCash
Transactions, the Convenience Fee may not exceed $5.00 per transaction.
5. Compensation to PreCash
Processing Fee. PreCash shall collect from Q Comm--each banking business
day via ACH to the Q Comm Deposit Account)--a fee of $1.00 for every Authorized
PreCash Transaction ("Processing Fee").
6. Point-of-Sale System and other Technical Requirements
6.1 POS System. At all times, Q Comm is responsible for ensuring that it
has an adequate POS System solution for meeting its obligations to process
PreCash Transactions in accordance with this Agreement. Subject to any
modifications required pursuant to Section 6.2, Q Comm may process PreCash
Transactions on the POS System that Q Comm currently uses to process bank card
transactions. Alternatively, Q Comm may utilize a stand-alone POS System
solution provided by third-party terminal provider, through a separate agreement
between Q Comm and such provider.
6.2 Initial POS System Modifications. If Q Comm's bank card processor
supports PreCash Services on its existing POS System, Q Comm may use that POS
System to process PreCash Transactions. If Q Comm's POS System does not support
PreCash Services, PreCash, in cooperation with Q Comm, shall evaluate what
modifications are required to the POS System or by Q Comm's bank card processor
to support the processing of PreCash Transactions. PreCash and Q Comm shall use
commercially reasonable efforts to enable PreCash Transactions to be accepted on
Q Comm's POS System. Each party shall bear its own costs associated with such
modifications.
PreCash Confidential Page 6
6.3 Post-Initial POS System Modifications. Once PreCash Services are
functional, Q Comm shall be responsible for ensuring that its POS System and
associated software continually conform to the requirements established by
PreCash (the "Technical Requirements"). Q Comm shall give PreCash thirty (30)
days advance written notice of: (a) any modifications to the POS System or
software impacting PreCash, or (b) its intent to change Q Comm's POS System or
bank card processor, if such change would impact PreCash. PreCash shall give Q
Comm thirty (30) days advance written notice of any material changes to the
Technical Requirements. Q Comm and PreCash shall use commercially reasonable
efforts to ensure that the processing of PreCash Transactions is not interrupted
by either party's modifications or changes.
6.4 Service Interruptions. Q Comm shall inform PreCash immediately if the
POS System is unable to process PreCash Transactions. Upon notification, PreCash
shall use commercially reasonable efforts in cooperation with Q Comm and Q
Comm's bank card processor to remedy any functionality problems.
7. Implementation Schedule
7.1 Pilot. Within two weeks of the completion and successful testing of the
POS System, the parties will conduct a Pilot involving at least 21 Q Comm
Merchants. The Pilot will be conducted during a two-week period, during which
the parties will use best efforts to resolve all identified issues. The Pilot
may be extended upon the mutual agreement of the parties.
7.2 National Launch. Within thirty (30) days following the completion of
the Pilot, Q Comm shall use best efforts to ensure that all Advantage Wireless
Merchants (1) are technically capable of processing PreCash Transactions and (2)
have received adequate training with respect to the appropriate procedures for
processing PreCash Transactions.
8. Trademark Usage
8.1 PreCash Marketing Materials. As further detailed in Section 3.5 above,
PreCash shall provide Q Comm with window, door and terminal decals and
additional materials bearing the PreCash logo (the "Point of Purchase
Materials"). Q Comm shall display the Point of Purchase Materials alongside the
marks of other credit cards or payment processing mechanisms that Q Comm
accepts. Q Comm shall not create or display any other decal, sticker or other
material bearing the PreCash name or logo without prior written approval from
PreCash. Q Comm shall not display or use advertising or promotional materials
containing PreCash's name or symbol that might cause a customer to assume that Q
Comm is the only provider of PreCash Services. Q Comm shall use the Point of
Purchase Materials, any trade name, trademark, service xxxx or logotype
associated with PreCash or PreCash only to inform the public that Q Comm
provides PreCash Services. Q Comm shall not indicate, directly or indirectly,
that PreCash endorses Q Comm's other products or services. Upon termination of
this Agreement, Q Comm shall immediately cease use of the Point of Purchase
Materials.
PreCash Confidential Page 7
8.2 Trademarks and Logos. Except for any announcement intended solely for
internal distribution or any disclosure required by law, accounting or
regulatory requirements beyond the reasonable control of either party, any use
by one party of the other party's name, logos, trademarks or service marks in
any press releases, customer lists, marketing materials or other announcements
or materials concerning matters covered by this Agreement or otherwise, or for
promotional, advertising or other purposes, shall require the other party's
prior written approval which approval shall not be unreasonably withheld or
delayed. The foregoing limitation shall not apply to communications or written
materials provided subject to a non-disclosure agreement with a third party.
9. Representations and Warranties.
9.1 Q Comm hereby represents and warrants to PreCash that: (a) all
information contained in Q Comm's application for processing services or any
other documents delivered to PreCash in connection therewith is true and
complete and properly reflects Q Comm's business, financial condition and
principal partners, owners or officers; (b) Q Comm has the power to execute,
deliver and perform this Agreement, and this Agreement is duly authorized, and
will not violate any provisions of law, or conflict with any other agreement to
which Q Comm is subject; (c) Q Comm has all licenses, if any, required to
conduct its business and is qualified to do business in every jurisdiction where
it is required to do so; and (d) there is no action, suit or proceeding at law
or in equity now pending or to Q Comm's knowledge, threatened by or against or
affecting Q Comm which would substantially impair its right to carry on its
business as now conducted or adversely affect its financial condition or
operations.
9.2 PreCash hereby represents and warrants to Q Comm that: (a) PreCash has
the power to execute, deliver and perform this Agreement, and this Agreement is
duly authorized, and will not violate any provisions of law, or conflict with
any other agreement to which PreCash is subject; (b) PreCash has all licenses,
if any, required to conduct its business and is qualified to do business in
every jurisdiction where it is required to do so; and (d) there is no action,
suit or proceeding at law or in equity now pending or to PreCash's knowledge,
threatened by or against or affecting PreCash which would substantially impair
its right to carry on its business as now conducted or adversely affect its
financial condition or operations.
10. Confidentiality.
10.1 Each party agrees that information disclosed by one party under this
Agreement (the "Disclosing Party") to the other party (the "Receiving Party"),
including pricing, marketing plans, plans, methodology, technology, customer
information and/or software, which information is considered proprietary by the
Disclosing Party, shall be considered Confidential Information under this
Agreement.
10.2 A Receiving Party shall not disclose the Disclosing Party's
Confidential Information to any third party without the Disclosing Party's prior
written consent, except under order of court or government agency, and then only
if the Receiving Party gives timely notice of such order to the Disclosing Party
to afford such Disclosing Party the opportunity to attempt to obtain a
protective order. Each party agrees to exercise the same level of care in
protecting the Confidential Information of the other party from unauthorized use
and disclosure as it uses in connection with its own Confidential Information,
but in no event less than reasonable care.
PreCash Confidential Page 8
10.3 Confidential Information will not include information that is (i)
publicly available, (ii) in the Receiving Party's lawful possession prior to the
Effective Date and not subject to disclosure restrictions on the part of the
Receiving Party, (iii) obtained by the Receiving Party from third parties
without disclosure restrictions known to the Receiving Party, or (iv)
independently developed by the Receiving Party without reference to the
Disclosing Party's Confidential Information.
11. Term and Termination.
11.1 Term. This Agreement will commence on its Effective Date and will
continue for one(1) year- from the date a PreCash Cardholder processes the first
Authorized PreCash Transaction (excluding any test transactions by PreCash
employees), as confirmed by PreCash's transaction records.. Thereafter, it will
automatically renew for successive one-year terms, unless either party gives
written notice of nonrenewal not less than sixty (60) days prior to the end of
the then-existing term.
11.2 Termination for Cause. Except for such shorter notice as may otherwise
be provided in this Agreement, either party may terminate this Agreement at any
time, with Cause, upon thirty (30) days' written notice to the other. For
purposes of this Agreement, "Cause" shall mean a party's failure to comply with
any provision of this Agreement or any other negligent or willful act or
omission relating to this Agreement, which the party fails to cure within the
thirty (30) day written notice period referred to in the previous sentence.
11.3 Post-Termination Obligations. All of Q Comm's payment obligations to
PreCash under this Agreement will survive any termination or expiration of this
Agreement, as will all of Q Comm's obligations with respect to Taxes. Upon any
termination hereof, Q Comm shall (a) immediately cease use and return any
inventory of PreCash-related marketing collateral to PreCash, (b) allow PreCash
to remove PreCash's software application from Q Comm's POS Systems, and (c)
inform its processor that it no longer processes PreCash Transactions.
12. Requests for Copies; Compliance with Laws
If, in order to satisfy legal or regulatory obligations or otherwise
respond to questions concerning Cardholder accounts or Taxes, PreCash or any
PreCash Card Issuer requests from Q Comm paper transaction records, a legible
microfilm or electronic copy thereof (in size comparable to the actual paper
transaction records), and/or any other documentary evidence available to Q Comm,
Q Comm shall provide the requested records within five (5) calendar days of
receipt of PreCash's or such PreCash Card Issuer's request. Q Comm shall comply
with all laws applicable to Q Comm, Q Comm's business and any PreCash
Transaction, including, without limitation, all state and federal, consumer
credit and consumer protection statutes and regulations.
PreCash Confidential Page 9
13. Credit Checks
Q Comm authorizes PreCash to conduct credit checks and to collect other
customary and relevant information to verify the Q Comm's creditworthiness
during the term of this Agreement. Q Comm hereby agrees that the ability to
process PreCash Transaction on behalf of PreCash granted by this Agreement,
constitutes a valid reason to inquire into the creditworthiness of Q Comm. If
found uncreditworthy, Q Comm will be required to establish a security deposit or
acceptable letter of credit. Failure to do so will give rise to an immediate
termination right by PreCash.
14. Indemnification; Limitation of Liability
14.1 Indemnification. PreCash and Q Comm each shall defend, indemnify and
hold the other harmless from any claim for personal injury or property damage
connected with this Agreement that may be asserted against the indemnitee by
third parties based on the breach of this Agreement, negligence or willful
misconduct of the indemnitor. If such claim arises from the joint negligence or
misconduct of PreCash and Q Comm, each party shall indemnify the other in
proportion to its proportionate negligence or misconduct. With respect to
Taxable Sales, Q Comm further agrees to hold PreCash and each PreCash Card
Issuer harmless from, and indemnify PreCash and each PreCash Card Issuer against
all claims, losses, damages and liabilities, including Tax, interest, penalties,
additions to Tax, attorney's fees and other costs of defense, that relate to or
result from any alleged violation by Q Comm of any applicable law or regulation
or provision of this Agreement with respect to any Tax, Taxable Sales or Resale
Exemption Evidence.
14.2 No Special Damages. Except as otherwise expressly set forth in this
Agreement, neither party shall be liable to the other party for indirect,
special, incidental, punitive or consequential damages, even if such party has
been notified of the possibility or likelihood of such damages.
14.3 Disclaimer of Additional Warranties. NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES OTHER THAN THOSE EXPRESSLY STATED HEREIN. EACH
PARTY HEREBY DISCLAIMS AND NEGATES ANY AND ALL OTHER WARRANTIES, INCLUDING ANY
WARRANTIES OF Q COMMABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT
OF INTELLECTUAL PROPERTY, OR THAT SERVICES WILL BE PERFORMED IN A WORKMANLIKE
MANNER. SUCH ADDITIONAL WARRANTIES ARE HEREBY DISCLAIMED AND DENIED FOR ALL
PURPOSES.
14.4 Force Majeure. Neither party shall be liable for any delay in or
failure of performance under this Agreement resulting from events beyond its
reasonable control, including but not limited to the following: hurricanes,
tornadoes, floods, fires, explosions, epidemics, power failures, communication
system failures, strikes, riots, wars or civil insurrections, acts of God,
governmental regulations or laws imposed after the Effective Date, and so forth;
provided, however, that a party subject to any such force majeure shall promptly
give the other written notice thereof and shall use reasonable efforts to remove
or rectify any such force majeure.
PreCash Confidential Page 10
15. Intellectual Property Rights
15.1 Any intellectual property which is owned or controlled by either party
to this Agreement prior to the Effective Date of this Agreement or which is
acquired by a party independently of this Agreement shall at all times continue
to be owned and/or controlled by said party.
15.2 Any intellectual property which is developed in the course of the
performance of this Agreement solely by the employees and/or agents of one of
the parties hereto shall be and remain the property of that party. The term
solely is used narrowly in the preceding sentence to mean development without
reference whatsoever to any Confidential Information of the other party;
otherwise such intellectual property shall be deemed jointly developed and shall
be subject to the foregoing paragraph.
15.3 In the event either party deems it necessary to undertake joint
development efforts (including efforts requiring use of the Confidential
Information of the other party), the parties agree to negotiate in good faith a
separate agreement addressing each parties' respective obligations and rights
with respect to such joint efforts and resulting joint intellectual property.
Unless otherwise agreed in writing by the parties, neither of them will commence
efforts on any such joint projects prior to the execution of the separate
agreement required by this provision.
16. Miscellaneous.
16.1 Amendment and Modification. This Agreement may not be amended,
modified, superseded or canceled and none of the terms, provisions, covenants,
representations, warranties or conditions may be waived, except by a written
instrument executed by the parties, or in the case of waiver, by the party
waiving compliance. Notwithstanding the foregoing, PreCash may modify the
general terms relating to its PreCash transaction process so long as such
modifications apply to all PreCash Q Comms, upon fifteen (15) days' prior
written notice to Q Comm. Q Comm's continued processing of PreCash Transactions
shall constitute acceptance of the new term(s).
16.2 Assignment. Neither party may, without the prior written consent
of the other party, assign or transfer this Agreement or any duty or obligation
expressed herein, except by merger, reorganization, consolidation or sale of all
or substantially all of such party's assets. Any attempt to do so in
contravention of this Section 16.2 shall be void and of no force and effect.
16.3 Compliance with Laws. Both parties agree to comply with all applicable
federal, state and local laws, regulations and codes in the performance of this
Agreement.
16.4 Construction. Both parties have had the opportunity to review and
revise this Agreement; no ambiguity should be construed in favor of or against
either party based on which suggested the language. The headings and
organization used herein are solely for convenience and shall not be used to
construe the Agreement. Unless the context otherwise requires, use of the
singular includes the plural and vice versa.
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16.5 Counterparts. This Agreement may be executed in as many
counterparts as may be required and each such counterpart shall be considered an
original but all of which when taken together shall constitute but one and the
same instrument.
16.6 Entire Agreement. The parties intend that the terms of this Agreement,
including any attached exhibits and addenda, shall be the final expression of
their agreement with respect to the subject matter hereof and may not be
contradicted by evidence of any prior or contemporaneous agreement. The parties
further intend that this Agreement shall constitute the complete and exclusive
statement of its terms and that no extrinsic evidence whatsoever may be
introduced in any judicial, administrative or other legal proceedings involving
this Agreement.
16.7 Exclusivity. Q Comm agrees that during the term of this Agreement,
PreCash's PreCash Payment System shall be the exclusive method accepted by Q
Comm for processing prepaid transactions. This provision is not intended to
prohibit Q Comm's sale of pre-denominated prepaid card or other prepaid
technologies.
16.8 Governing Law. This Agreement is governed by and will be construed in
accordance with the laws of the State of Delaware, exclusive of its choice of
law provisions.
16.9 Independent Contractor. Neither party hereto will be deemed the agent
or legal representative of the other for any purpose whatsoever and each party
will act as an independent contractor with regard to the other in its
performance under this Agreement. Nothing herein will authorize either party to
create any obligation or responsibility whatsoever, express or implied, on
behalf of the other or to bind the other in any manner, or to make any
representation, commitment or warranty on behalf of the other.
16.10 Notices. All notices, demands and other communications required or
permitted hereunder shall be made in writing and shall be deemed to have been
duly given if delivered by hand or mailed, postage prepaid, certified,
registered, or first-class mail, and addressed to:
Q Comm at: PreCash at:
0000 Xxxxx 0000 Xxxx 0000 X Xxxx Xxxxx, Xxxxx 000
Xxxx, XX 00000 Xxxxxxx, XX 00000
Attn: President Attn: President
16.11 Remedies. Unless stated otherwise, all remedies are cumulative
and in addition to any other remedies available at law or in equity.
16.12 Severability. In the event that any portion of this Agreement may be
held invalid or unenforceable for any reason, it is agreed that any invalidity
or unenforceability shall not affect the remainder of this Agreement and the
remaining provisions shall remain in full force and effect, and any court of
competent jurisdiction may so modify any objectionable provision of this
Agreement so as to render it valid, reasonable and enforceable.
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16.13 Third-party Beneficiary. Each of PreCash and Q Comm agrees that each
PreCash Card Issuer is an intended third-party beneficiary of this Agreement,
and shall be entitled to directly enforce the rights granted to such PreCash
Card Issuer under this Agreement.
16.14 Time of Performance. Time is of the essence in the performance
of this Agreement.
16.15 Waiver. No failure by either party to exercise any right arising from
a default by the other party shall impair that right or constitute a waiver of
it. No waiver by any party of any condition or breach of any term, provision,
covenant, representation or warranty, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such condition or breach, or a waiver of any other
condition, or breach of any other term, provision, covenant, representation or
warranty.
16.16 Publicity. Subject to applicable securities regulations, the parties
will allow a mutually agreed upon press release to be distributed within 30 days
after the Effective Date of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year last written below (the "Effective Date").
PRECASH CORPORATION: Q COMM INTERNATIONAL, INC.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxxx
------------------------- -----------------------------
(Signature) (Signature)
Name: Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxxxxx
------------------------- -----------------------------
Title: CFO and Secretary Title: President
------------------------- -----------------------------
Date: February 7, 2003 Date: February 7, 2003
---------------------- --------------------------
PreCash Confidential Page 14
Exhibit A
Authorization To Debit Account By Automated Clearing House ("ACH")
-------------------------------------------------------------------------------
NAME: Q COMM INTERNATIONAL, INC.
-------------------------------------------------------------------------------
PreCash will accept electronic payments for Q Comm collections through
the ACH electronic transfer system. By completing this form, you are authorizing
PreCash to debit the depository account identified below electronically for all
monies due PreCash under the PreCash Retail Q Comm Agreement. Please enter your
account and financial institution information in the spaces provided below.
Name of Financial Institution:
-------------------------------------------------
Branch:
------------------------------------------------------------------------
Branch Phone Number: ( ) Contact Name:
---------------------- -----------------------
Financial Institution Address:
-------------------------------------------------
City: State: Zip:
-------------------- -------------- --------------
Depository account to debit (Checking Account No.):
---------------------------
Financial Institution Routing No. (ABA #, always 9 digits)
-------------------------------------------------------------------------------
(For Example: 010000081)
By signing below, the undersigned (i) represents that he/she has the
power and authority to execute this authorization on behalf of the Q Comm
identified below, and (ii) authorizes PreCash on behalf of Q Comm to debit by
ACH the above-referenced demand depository account of Q Comm electronically, on
a regular, periodic basis for funds due PreCash under the PreCash Retail Q Comm
Agreement.
This authorization shall remain in effect at all times when the PreCash
Retail Q Comm Agreement remains effective or until such time as all outstanding
obligations of Q Comm to PreCash arising under the Agreement are paid in full,
whichever is longer.
Signed on behalf of Q Comm this day of , 2001.
----- ----------------------
-----------------------------------
(Signature)
------------------------------------
(Print Name)
------------------------------------
(Title)
PreCash Confidential Page 15
****Please attach a voided check****
PreCash Confidential Page 16
Exhibit B
PORTION OF TRAINING MATERIALS RELATED TO TAXABLE SALES
Process definition:
As described in the Training Materials, Verizon Wireless prepaid service refill
transactions are classified as Taxable Sales. To be eligible to process these
transactions using the PreCash Card at your business location(s), you must do
the following:
1. Use the attached state tax matrix to determine whether any of your
business location(s) are in states that require you to collect sales
tax for Taxable Sales. If so, you need to provide resale certificates
that will be forwarded to and retained by Verizon Wireless. You may use
the Uniform Sales and Use Tax Certificate - MultiJurisdiction form
(found attached to the contract paperwork or on the Internet at
xxx.xxx.xxx) for any state which is listed on this form, or use the
individual-state form published by your state's tax authorities.
2. Include all completed resale certificates with your PreCash Retail Q
Comm Agreement paperwork. Note: If applicable, Verizon Wireless will
contact you for renewal of the tax exemption certificate.
3. If you have any questions about your state's policy on requiring sales
tax to be collected for prepaid service refill transactions, please
contact your local taxing authority.
4. Return all completed paperwork to PreCash Corporation Attn: Contract
Administration 0000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
Please note that the only PreCash refill transaction currently classified as a
Taxable Sale is a Verizon Wireless - PreCash transaction. You may accept all
non-Verizon Wireless transactions without collecting sales tax.
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