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EXHIBIT 10.19
GENERAL MARKETING AGENT AGREEMENT
TOWNE SERVICES, 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) "Customer" shall mean, a bank or holding company that meets
the qualifications and criteria applicable to such offering of
services by servicer for solicitation by Agent from time to
time. "Bank Marketing 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 the services provided to a "Customer".
b) "Territory" shall mean the states, countries, or locations
identified on Exhibit "A" hereto.
c) "Term" shall mean that period commencing on the date hereof
and lasting for a period of twelve complete months and any
subsequent twelve month renewal period.
2. Appointment: Subject to the terms of this Agreement, Servicer engages Agent
to solicit customers to enter into Bank Marketing Agreements with Servicer
for its services. Agent may solicit customers only with respect to their
proposed use of Towne Services, Inc. services in the Territory. Servicer
reserves the right, to change the terms and conditions of its Bank
Marketing Agreement at any time, and Servicer agrees to provide 30 days
notice to Agent of any substantive changes. Agent acknowledges that this
Agreement does not confer on Agent exclusive rights in any other territory.
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 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.
4. Responsibilities of Agent: The duties of Agent shall be to:
a) Use its best efforts to solicit Customers to enter into Bank
Marketing Agreements;
b) Conduct its business so as to maintain and increase the
goodwill and reputation of Servicer;
c) Pay all expense incurred by Agent in the performance of its
duties under this Agreement, including (1) local and
long-distance transportation expenses: and (2) expenses in
connection with the solicitation of Customers and the
operation of Agent's business, including telephone, delivery,
entertainment, and promotional expenses; and
d) Use only promotional material mutually agreed upon for
purposed of promotion of the Servicer's business.
5. Limits of Authority: Agent shall not, without prior written approval from
an authorized representative of Servicer, take any of the following
actions:
a) Incur any expense or obligation in the name of the Servicer;
b) Disseminate any printed material regarding the Licensed
Products or Servicer's business; or
c) Use Servicer's advertising and promotional guidelines.
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6. Payment of Commissions: Agent shall be compensated by Servicer for its
services solely on the basis of fees earned and collected on any Bank
Marketing Agreements for Customers located within the Territory.
Commissions shall be set forth in a Commission Schedule attached hereto as
Exhibit "B". 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 fees
earned. At no time shall Servicer be obligated to reimburse Agent for any
expenses unless it agrees to do so in writing.
8. Sales Support: Servicer shall provide sales support to agent including
promotional materials and sales representative in Territory as reasonably
required by agent.
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 one hundred twenty days prior
written notice. The payment of commissions shall continue through the term
or any Bank Marketing Agreement entered into pursuant to this Agreement
between Servicer and a Customer in the event of any termination other than
involuntary termination by either party.
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;
b) Violates any law or regulation; or
c) Commits any willful or dishonest act that could injure the other
party.
11. Confidentiality: 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 full benefit of all work and contacts
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 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. Without limiting the
generality of the foregoing, Trade Secrets of Servicer include nonpublic
information regarding the Servicer, account invoices, training and
educational manuals, administrative manuals, 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. The foregoing obligation shall continue to apply
for two years after termination of this Agreement.
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, manuals, disks, or other documents and media
pertaining to Servicer's business or Agent's activities or duties as a
Servicer agent, including all copies, extracts, summaries, and analyses
thereof. This obligation shall not apply to publicity distributed
documentation, or internal business or personal records of Agent's own
creation that do not contain Servicer Trade Secrets.
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13. Remedies: In the event of any breach by either party identified in Section
10 of this Agreement, the resulting injuries to the other party would be
difficult or impossible 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.
14. 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. 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
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: Towne Services, Inc. Agent:
By: ______________________________ By: _____________________________
Title: __________________________ Title: __________________________
Date: ___________________________ Date: ___________________________
