Contract
1
EXHIBIT 10.29
This Agreement (the
“
Agreement
”)
is entered into by and
between Popular, Inc.
(“
Popular
”),
a corporation duly
organized existing under
the laws of Commonwealth of Puerto Rico
and Xxxxxx X. Xxxxxxx
(“
Consultant
”)
(each a
“
Party
” and together the
“
Parties
”),
on December 7, 2023.
WHEREAS, Consultant is currently employed by Popular as Executive
Vice President and Chief Financial Officer;
WHEREAS, Consultant has decided to
retire from Popular effective March 31, 2024; and
WHEREAS, in connection
with Consulant’s voluntary retirement, Popular desires to retain
Consultant following his
retirement to
provide certain consulting services to Popular, and Consultant desires to
provide such consulting services
to Popular, all subject to the terms and
conditions set forth herein; and
NOW
THEREFORE, in consideration of the promises
and the mutual covenants and agreements
contained herein,
and for
other good and
valuable consideration, the
receipt, sufficiency and
adequacy of which
are hereby
acknowledged, the parties hereby agree as follows:
1.
Services
1.1
Service
Engagement. Consultant represents and agrees that it shall provide and render to Popular such consulting
services, as may
be reasonably requested by Popular, (i) to facilitate the transition of the
Chief Financial Officer’s
responsibilities
to Consultant’s successor and (ii)
to support other general business initiatives
(collectively, the
“
Services
”).
1.2
employee relationship with Popular, nor a partnership,
affiliation, joint venture, agency relationship or other form
of business
association between the Parties hereto.
2.
FEES,
INVOICES AND PAYMENT
2.1
Fees and Reimbursable
Expenses. For the Services provided under this Agreement, Popular shall pay Consultant
a fee
equal to $32,000 per
month, for an aggregate total
fee of
$384,000 during the
Term (as defined below)
(“
Fees
”). The
Fees include all
fees, costs and
administrative and overhead
expenses. Popular will reimburse
Consultant only for those expenses previously agreed to by Popular and, unless otherwise stated, meal and travel
expenses will be reimbursed in accordance with Popular’s guidelines,
which will be provided upon
request.
2.2
Payment.
Popular will pay the Fees in United States Dollars, monthly in arrears, no later than the fifteenth (15th)
day of
the calendar month following the month in which such fee was
earned. Popular will deposit the payment
electronically to the bank account designated by Consultant or as
otherwise mutually agreed to by the
Parties.
2.3
Taxes.
Consultant shall pay all taxes related to the Services provided under this Agreement. If Popular is required
by Federal or
US state Law to withhold taxes
on any amount payable to Consultant,
Popular will deduct such
taxes and
pay them to the
appropriate taxing authority,
unless Consultant submits
evidence of a
government-
issued exemption or waiver. However, Popular’s
omission from withholding any applicable taxes, in whole or in
part, will
not discharge Consultant’s responsibility to pay any
such taxes when due. Consultant shall indemnify
Popular from any and
all liability that may arise for nonpayment of any
applicable taxes. Popular shall pay any
state sales, use
or value added tax applicable to
the Services or products. The
withholding Party shall provide
proof of payment of the taxes withheld.
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3.
TERM
AND TERMINATION
3.1
Term of the
Agreement. The Agreement will commence on April 1, 2024
(the “
Effective
Date
”) and will continue
in effect until March 31, 2025 (the
“
Term
”).
3.2
Termination.
Either Party may
terminate the Agreement
for cause upon
written notice to
the other Party as
follows: (1) if the cause for termination relates to a violation of Laws
(defined below), breach of confidentiality,
privacy or
other compliance matter,
the termination may
be effective immediately
or (2) for Consultant’s
noncompliance with its obligations under the Agreement, the effective
termination date will be ten (10) days after
delivery of the notice of the
breach to the breaching Party if it remains uncured at the expiration
thereof.
3.3
Effect
of Termination. Upon
expiration or termination
of the Agreement
for any reason,
Consultant shall
promptly: (a)
deliver to Popular
all documents, work
product, and other
materials, whether or
not complete,
prepared by or on behalf of Consultant during the course
of performing the Services for which Popular has made
the corresponding
payment; (b) return
to Popular all
Popular-owned property, equipment,
or materials in its
possession or control;
(c) remove any Consultant-owned property, equipment,
or materials located at Popular’s
locations; and (d) comply with the provisions related to the
destruction of Popular’s Confidential Information as
provided
below.
3.4
Survival
of Terms. Any provision of
the Agreement that expressly or by
implication is intended to continue in
force shall survive termination or expiration of the Agreement.
4.
CONFIDENTIALITY
OF INFORMATION
4.1
General.
The Parties acknowledge that, in furtherance of the Agreement, the Consultant (the “
Receiving
Party
”)
may receive
from Popular (the
“
Disclosing
Party
”)
Confidential Information. Unless
otherwise agreed, the
Disclosing Party will remain the owner of the Confidential Information and any derivative thereof and
retains its
entire right,
title, and interest,
including all intellectual
property rights, therein.
Any disclosure of such
Confidential Information
hereunder shall not
be construed as an
assignment, grant, option,
license, or other
transfer of
any such right,
title, or interest
whatsoever to the
Receiving Party. Other
than the limited rights
hereunder, the Receiving Party has no other rights in or to any Disclosing
Party’s
Confidential Information.
4.2
Definition
of Confidential Information.
The term
“
Confidential
Information
”
means any and all
of the
Disclosing Party’s
confidential or proprietary non-public information or data, whether in electronic or hard copy
format, that is
collected, generated, developed, or
used in its business or
operations. Confidential Information
includes: (1) nonpublic information or
data related to actual or potential employees, clients or suppliers including
agreement terms and
conditions and lists; (2) Intellectual Property
(as defined below); (3) products or services
currently provided or to be developed, including any market research,
forecasts or surveys, plans, specifications,
documentation, quality guidelines, and analyses of strengths or weaknesses; (4) marketing
and sales information,
such as
techniques and data,
product development and
delivery schedules and
methods and logistical
requirements, strategic
planning, marketing and
advertising plans and
budget; (5) technical
and technological
information, including
computer software and
related documentation, license
terms, designs, formulas and
algorithms, hardware and systems design, specifications, dataflow, networks,
physical and systems environments,
troubleshooting guidelines, test
and audit results, data and databases, interfaces, performance characteristics and
reports; (6)
financial information, including,
financial statements, revenue,
income, overhead costs, profit
margins, banking
and financing data,
budgeting data and
reports, tax information
and pricing policies; (7)
organizational information
including, merger, acquisition and expansion
plans, facilities and equipment design
and location; and
(8) Popular’s overall strategies, specific programs
and strategies utilized by Popular; and the
success or lack of success of those programs and
strategies. To the extent applicable to the Services, Confidential
Information includes Popular’s clients’ statutorily protected
non -public personal information or
data (“
Personal
Data
”)
as defined in applicable Law and this Agreement. Confidential Information does not include information
that the Receiving Party can reasonably demonstrate: (1) was
already known to or was rightfully in the possession
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of the Receiving Party at the time of disclosure;
(2) becomes a matter of public knowledge other than as a result
of a
breach of any
obligation of confidentiality
hereunder or under
any confidentiality agreement
that the
Receiving
Party may have with a third-party; (3)
was independently developed by the Receiving
Party without
reference
to any Confidential Information of the
Disclosing Party; (4) was lawfully received
from a third-party
without a
duty of confidentiality;
or (5) was
approved for release
by the Disclosing
Party in writing.
Notwithstanding this
exception, Popular’s Intellectual
Property and Personal
Data will always be
considered
Confidential Information.
4.3
Confidential
Information Use and Disclosure.
(A)
Any disclosure
by the Receiving Party of any of the Disclosing Party’s Confidential Information in order to
comply with applicable
Law, or with a valid order issued by
a court or governmental agency of competent
jurisdiction (a
“
Legal
Order
”) shall
be subject to the
terms of this
Section. Before making
any such
disclosure, the
Receiving Party shall provide the Disclosing
Party with: (a) prompt written notice
of such
requirement
so that the Disclosing Party may
seek, at its sole cost and expense,
a protective order or other
remedy; and
(b) reasonable assistance,
at the Disclosing
Party’s sole cost
and expense, in
opposing such
disclosure or seeking a protective order or other
limitations on disclosure. If, after providing such notice and
assistance, the
Receiving Party (or other persons to whom such Legal Order is
directed) remains subject to
a Legal
Order, the Receiving Party shall disclose no more than that
portion of the Confidential Information
which, on
the advice of the
Receiving Party’s legal
counsel, such Legal
Order specifically requires
it to
disclose and,
on the Disclosing Party’s request, shall use commercially reasonable
efforts to obtain assurances
from the
applicable court or
agency that such
Confidential Information will
be afforded confidential
treatment. Nothing herein shall require either Party to fail to honor a subpoena, court or administrative order
or a similar requirement or request on
a timely basis. If Confidential Information includes materials subject
to the attorney-client privilege, work product
doctrine or any other applicable privilege concerning pending
or reasonably foreseeable
legal proceedings or governmental investigations, the sharing
of such material is
not intended to, and shall not, waive or diminish in
any way the confidential nature of the information or its
continued protection under the attorney-client privilege, work product doctrine or other applicable privilege.
(B)
The
Consultant shall not,
without Popular’s prior
written consent: (i)
use, reproduce, sell, market,
disseminate, modify or disclose, reverse engineer, translate, discover the source code or trade secrets, render
anonymous, aggregate, segregate or mine any
Confidential Information for any purpose other than to perform
the obligations
for which the
Confidential Information is
being disclosed; (ii)
disclose the Confidential
Information; (iii) use, access, disclose,
process, transmit, share or store Confidential Information outside of
the jurisdiction of the United States; or (vi) remove any proprietary rights
or confidentiality legend from the
Confidential
Information.
4.4
Confidential
Supervisory Information. Consultant
agrees that it
will (i) not
disclose Confidential Supervisory
Information
(“
CSI
”)
to any person
or entity without
the prior written
approval of Popular
and the pertinent
banking regulatory agency and (ii) not use the
CSI for any purpose other than as necessary to provide the Services
under this Agreement. “Confidential Supervisory Information” or
“CSI” means nonpublic information that is by
law or
regulation exempt from
disclosure and that
is or was created
or obtained in
furtherance of a banking
regulatory
agency’s supervisory, investigatory
or enforcement activities
relating to a
supervised financial
institution, together
with any information derived from or related to such information.
Confidential Supervisory
Information is confidential
and privileged and remains at all times the property of
the pertinent banking regulatory
agency.
4.5
Protection
of Confidential Information. The Consultant agrees
to implement and maintain updated during the
Term, controls necessary and appropriate for
the Consultant in order to protect Popular’s Confidential Information
against anticipated threats or hazards
or unauthorized access to or use thereof. If the Consultant
discovers it has
suffered an
unauthorized access, disclosure, loss or use
of Popular’s Confidential Information it
will promptly
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notify the incident to Popular and will take all reasonable steps to immediately mitigate, remedy and prevent any
further disclosure and assist the Popular in any investigation regarding the
incident, all at its expense.
4.6
Destruction. Upon
Popular’s request, the Consultant shall promptly return or destroy all
copies of the Popular’s
Confidential
Information, whether in
physical or digital
formats, and derivatives
and metadata related thereto
including copies embedded in computer
files, extracts from computer files and analyses or other
material based
upon the
Confidential Information. Should Popular request evidence of
the destruction of any such Confidential
Information, the Consultant shall submit,
within thirty (30) calendar days of such request (or
such other time as
agreed
to between the Parties), an attestation
executed by the Consultant certifying that
any such Confidential
Information has been destroyed.
5.
COMPLIANCE
AND AUDIT
5.1
Compliance
Requirements.
(A)
Legal
Requirements in General. Consultant will provide the Services and comply with his obligations under
the Agreement in
a professional manner and in accordance
with industry best practices and in compliance
with applicable
federal, state, local,
and foreign law,
rule, regulation, administrative
determinations, and
guidance, as
well as the
judgments and orders
issued by competent
government authorities thereunder
(“Laws”), and professional code of
conduct.
(B)
OFAC.
Consultant represents and warrants that: (a) he complies, and shall at all times during the Term will
continue to
comply, with the regulations of the U.S. Treasury Department Office
of Foreign Assets Control
(“
OFAC
”) and any statute, executive order, or rule relating thereto, as well as any
similar laws of a relevant
jurisdiction that may be applicable to the
Consultant; (b) he or persons acting on Consultant’s behalf do not,
and shall
not during the
term of the
Agreement, appear on
OFAC’s Specially Designated
Nationals and
Blocked Persons List
(“
SDN
List
”), Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification
List
(“
SSI
List
”), or on any other similar list maintained by
OFAC or any other governmental authority; (c)
he is not located in any country or territory that is the subject to
the broad U.S sanctions prohibitions; and (d)
Consultant, is
not as of the Effective Date, the subject
of any investigation relating to a sanctions violation
or a potential sanctions
violation and if any is found in the future
to be in such a violation, it will promptly
inform Popular, to the extent not prohibited by
Law.
(C)
Anti-Bribery/Anti-Corruption.
1)
Consultant
acknowledges and agrees that he complies and during the Term will continue to comply, with all
applicable anti-bribery and anti-corruption Laws, including, but not limited to, the Foreign Corrupt Practices
Act (15 USC
§dd-1, et. seq.)
(“ABC Laws”). To this
effect, Consultant agrees that, while performing the
Services or purporting to act on behalf of Popular, Consultant will not: (1) make,
offer, promise or authorize
the payment of anything of value (including,
but not limited to, unlawful gifts, bribes, meals, entertainment,
kickbacks
or benefits), either directly or through a third -party, to any official or employee of any local, U.S.
or foreign
government authority, organization or instrumentality thereof, or to
any political party or official
thereof
or to any candidate for political office (a “Public
Official”) for any purpose that violates applicable
ABC Laws, in order to:
(i) influence any act or decision of such
Public Official, including a decision to do
or omit to do any
act in violation of his lawful
duties or proper performance of functions;
(ii) induce such
Public Official to use its authority or position with any
government entity or with any other person or entity,
to influence any
governmental act or decision; (iii) obtain or retain business for,
direct business towards, or
secure
an improper advantage for, Popular;
or (iv) perform any act or
make any decision that is otherwise
prohibited by applicable law; or (2) solicit or accept anything of value in
connection with the performance of
any service
or activity for or on behalf
of Popular. Furthermore, unless
specifically requested, Consultant
agrees
not to, directly or through an intermediary:
(1) contact any federal, state, local or foreign regulatory
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body or Public Official regarding any matter or issue in connection with
the Services for Popular; (2) engage
in lobbying efforts
on behalf of Popular, or (3) make payments to a
Public Official on behalf of Popular solely
to expedite or secure the performance of
routine, non-discretionary government actions to which Popular is
already entitled (“facilitating payments”).
2)
Consultant
represents that, to the best of Consultant’s knowledge, he does not have a close association based
on
a family, romantic
or friendship relationship
(“personal relationship”) with a Public
Official who may
need to
act or omit to act directly or indirectly as
part of its lawful duties, in relation to any
part of the Services
Consultant renders for Popular.
3)
Consultant agrees
to report in writing to Popular any known or suspected violations of applicable ABC Laws
or the terms of this Section
that occur in connection with Consultant’s performance of the Services, including
if he identifies that any
unlawful payment has occurred in violation of the above
or if he receives a request
or solicitation for any such payment.
5.2
Code
of Ethics. Consultant represents that he
has read, and shall comply with,
the Code of Ethics for Popular
Suppliers, as
may be amended
from time to
time, a copy
of which is
located at
xxxxx://xxxxxxxx.xxxxxxx.xxx/xxx/xxxxxxxxx -governance/default.aspx or
such other site identified by
Popular.
5.3
Monitoring
and Audit
Rights.
(A)
Consultant
acknowledges that Popular, its internal or external auditors and its regulators may perform audits,
assessments, examinations, or
reviews of Consultant’s Services
(“
Audit
”)
in order to confirm compliance
with the Agreement, as well as with Laws and industry standards. Upon Popular’s written
request, at a time,
frequency and
place reasonably agreed
to between the
Parties, Consultant shall
submit the information,
provide periodic reports
(including those of internal controls, systems,
financial condition or compliance),
respond to risk questionnaires or
allow access to relevant Personnel, systems, documents or
physical premises
in
a timely manner so as to
permit Popular to comply with the
Audit. If an Audit reveals areas
of material
concern to
Popular, the Parties
will agree on a
plan to address
the deficiency in
an adequate and timely
manner. If Consultant does not address such material deficiencies in
accordance with the plan, Popular may
modify the
frequency of the monitoring activities
at Consultant’s expense or terminate
the Agreement for
cause.
6.
INTELLECTUAL
PROPERTY
6.1
Ownership.
Each Party acknowledges that the other Party owns the intellectual
property associated with or related
to the other Party and, in the case of Popular, its
affiliates, and their respective businesses, products and services
including copyrights, patents, patent disclosures
and inventions (whether patentable or not), trademarks, service
marks, trade
secrets, know-how, and other confidential
information, trade dress, trade names, logos, corporate
names and domain names, together
with all of the goodwill associated therewith, and
derivative works in whatever
medium whether
or not registered,
and all related
rights therein (“Intellectual
Property”). Each Party further
acknowledges that
it receives no right, title to
or interest in or to any
of the other Party’s Intellectual Property
other than as provided under the Agreement.
6.2
Popular
Ownership of Work Product. Unless otherwise
explicitly agreed to in writing by the Parties,
Popular is
and will
be the sole and
exclusive owner of
all right, title
and interest throughout
the world in and
to all
deliverables that are the results and proceeds of the Services
performed under the Agreement, whether developed
singly or jointly with any
other person or entity, for or on behalf of Popular (“Work
Product”). The Work Product
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includes, without
limitation, all works
of authorship, data,
materials or information
gathered, originated,
developed, processed
or obtained, and
all program codes
or documentation together
with any associated
copyrights. Consultant agrees that all Work Product will
be deemed “work for hire” as defined by Law
for Popular
and
all copyrights therein automatically and immediately
vest in Popular. If for any
reason Work Product does
not constitute work
for hire, Consultant irrevocably assigns (and
will perform all acts necessary to
make such
assignment, including
agreements from its
Personnel or Subcontractors)
to Popular, for no
additional
consideration, the entire right, title, and interest throughout the world in
and to such Work
Product.
7.
LIABILITY;
INDEMNIFICATION
7.1
Indemnity.
Each Party shall indemnify, hold harmless, and
defend the other Party and each
of its affiliates and
their respective
officers, directors, employees,
agents, successors, and
assigns (collectively,
“
Indemnitees
”)
against losses,
damages, liabilities, deficiencies,
claims, actions, judgments,
settlements, interest, awards,
penalties, fines,
costs, or expenses,
including professional fees
and reasonable attorneys’
fees (collectively,
“
Losses
”), related or
incidental to, or arising out
of: (i) the actual or
alleged violation of Laws; (ii) actual or
alleged act, failure to act or omission, constituting fraud, negligence
or willful misconduct relating to the Services
(iii) a
third-Party claim, suit,
or proceeding arising
out of, related
to, or alleging
infringement of intellectual
property right by the Work Product or any Intellectual Property used to provide the Services or made available to
Popular as
part of the
Services; or (iv)
claims alleging injury
or damage to
persons or property
caused by
Consultant during
the provision of its Services. The indemnification obligations shall
survive the termination of
the
Agreement.
7.2
Limitation
of Liability. NEITHER
PARTY SHALL BE
LIABLE TO THE
OTHER PARTY FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING
LOSS
OF PROFITS,
REVENUE, BUSINESS OR
SAVINGS, WHETHER IN
AN ACTION IN
CONTRACT OR
TORT, EVEN
IF SUCH DAMAGES ARE
POSSIBLE OR FORESEEABLE.
LIABILITY FOR GENERAL
CLAIMS FOR BREACH
OF CONTRACT WILL BE LIMITED TO
AN AMOUNT EQUIVALENT TO THE
FEES FOR
SERVICES PAID OR PAYABLE BY POPULAR
TO CONSULTANT DURING THE
TWENTY-
FOUR MONTHS PRIOR
TO THE DATE OF
THE CLAIM. NOTWITHSTANDING ANYTHING
TO THE
CONTRARY HEREIN, THE
LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE
EVENT OF
EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL
MISCONDUCT, FRAUD, VIOLATION
OF LAW (INCLUDING THOSE RELATED TO
PRIVACY AND DATA PROTECTION), OR THIRD-PARTY
CLAIMS FOR INTELLECTUAL
PROPERTY INFRINGEMENT.
8.
RESTRICTIVE
COVENANTS
8.1
Non-Compete.
During the Term of this Agreement, Consultant agrees that he
will not work or associate (including
as
a director, officer, employee,
partner, consultant, agent or advisor) with
or otherwise provide services to, or
operate, manage or control in any
way, a Competitive Enterprise performing the same or similar duties
as those
which were
performed by him
during the 12-month
period immediately preceding
the Effective Date
of this
Agreement.
“Competitive Enterprise” means
any business enterprise
that either (1) engages
in commercial or
consumer financial
services,
retail banking, internet
banking, or
other financial, investment,
financial advisor,
trust or insurance
services to either commercial or consumer customers in the Commonwealth of
Puerto Rico or
the States of
New York or Florida, or
(2) holds a 5% or greater
equity, voting or profit participation interest in
any enterprise that engages in such a competitive activity within the Commonwealth of Puerto Rico or the States
of New York or Florida.
8.2
Non-Solicitation
of Customers. During the Term of this Agreement, Consultant agrees that he
will not, directly
or indirectly
or through associates, agents, or employees solicit, participate in
or assist in the solicitation of any
of Popular’s
customers serviced by
him or with whom
he had Material
Contact and/or regarding
whom he
received Confidential
Information (as defined in Popular’s Code of Ethics) during
the three-year period prior to
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Effective Date who
were still customers of Popular during
the immediately
preceding 12
-month
period, for the
purpose
of providing products or series in
competition with Popular’s products or services.
“Material Contact”
means interaction between
Consultant and the customer within the three-years prior to the Effective
Date which
takes place to manage, service or further the business relationship.
8.3
Non-Solicitation
of Popular Employees. During the Term of this Agreement,
Consultant agrees that he will not,
directly or
indirectly or through
associates, agents, or
employees solicit, recruit
or assist in the
solicitation or
recruitment of
any employee or consultant of Popular (or who was an employee or
consultant of Popular within
the
prior six months of
the Effective Date) for the
purpose of encouraging them to leave
Popular’s employ or
sever an agreement for services.
8.4
Definition. The
term “Solicit”, when used in this section, will mean any direct or indirect communication of any
kind regardless of who initiates it, that in any way invites, advises, encourages or requests any person to take any
action; provided
that such term will
not be deemed to
include solicitation by
public advertisement media of
general distribution (i.e., not targeted to present employees,
consultants or customers of Popular) without specific
instructon or
direction by Consultant.
9.
GENERAL
TERMS
9.1
Additional
Representations and Warranties.
Each Party represents
and warrants to the
other Party that (a) the
Agreement will not violate the terms of any other agreement or contract to which such Party is bound nor require
any third-party
consent or approval; and (b) the
Agreement constitutes
a valid and binding
obligation of such
Party, enforceable
against it in accordance with its terms except to
the extent that enforceability may be limited
by bankruptcy,
insolvency, receivership, moratorium,
reorganization or other
similar laws affecting the
enforcement of creditors’ rights generally or general principles of
equity or considerations of public
policy.
9.2
No
Waiver. The failure or delay by
a Party to
require performance of the
other Party
of any provision of the
Agreement shall not
affect the right of such Party
to enforce the same provision, nor shall
the waiver by either
Party of any
breach of any provision hereof be
taken or held to be a
waiver of any succeeding breach of such
provision, or as a waiver of the provision itself. The Parties may exercise any right or remedy in order to enforce
the terms and conditions of the
Agreement.
9.3
Notice. All
notices or communication required hereunder must be
made in writing to the corresponding Party’s
contact and address. Legal notices (including claims, breach of contract, indemnification
requests, and regulatory
compliance issues)
from Consultant to
Popular must be
sent by messenger
with acknowledgement of receipt,
certified mail
or national courier
with copy to the
Legal Representative in
the same manner.
Any changes or
additions to the above contact information must be notified in writing with receipt acknowledged. Notification to
the Party’s contact of record shall be presumed correct.
9.4
Severability.
Should a court or arbiter with competent jurisdiction determine that any clause is illegal, invalid, or
unenforceable under present or
future law, such provision will be
fully severable, and the remaining provisions
of the Agreement will remain in full force and effect.
9.5
Governing Law and
Jurisdiction. The Agreement and all transactions contemplated therein will
be governed by,
and construed and enforced in accordance with, the laws of the Commonwealth of Puerto Rico, without regard to
any conflicts
of law provisions
thereof. Any civil
action or legal
proceeding arising out
of or relating to
the
Agreement will be brought exclusively
in the courts of the Commonwealth of Puerto Rico. Each Party consents
to the jurisdiction of such court in any such civil action
or legal proceeding and waives any objection to the venue
of any such civil action
or legal proceeding in such court.
EACH PARTY KNOWINGLY AND VOLUNTARILY
WAIVES ANY RIGHT
TO A TRIAL BY JURY IN
ANY ACTION
OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS OR DUTIES UNDER THIS AGREEMENT.
8
9.6
Assignment.
Popular may assign,
whether voluntarily or
involuntarily, by operation
of law or otherwise,
the
Agreement or any rights or obligations under the Agreement to any
subsidiary or affiliate without providing prior
written notice to Consultant. Consultant may not assign,
whether voluntarily or involuntarily, by operation of law
or otherwise
his rights and
obligations under the
Agreement without Popular’s
prior written consent, which
consent may
be withheld at
Popular’s convenience which
may include following
its vendor management
procedures prior to allowing the assignee to provide the Services.
9.7
Entire
Agreement and Amendments.
The Agreement and
any Annex, Schedule, appendix,
exhibit, certificate,
amendment or other document attached or subsequently
attached hereto or to which reference is made herein will
be incorporated
and made a part hereof as if fully set forth herein and will be subject to the terms and conditions
hereof and together with the Agreement will constitute the entire contract between the Parties, and supersedes all
prior or
contemporaneous agreements or
understandings, written or
oral, concerning the
subject matter of the
Agreement. The
Agreement may not be modified, amended
or supplemented in any manner except
by mutual
agreement of the Parties and set forth in a writing signed by a
duly authorized representative of each
Party.
9.8
No
Third-Party Beneficiaries. The Agreement shall be
binding upon and inure to the benefit of
the Parties and
their respective
successors and permitted assigns and, unless otherwise agreed to
by the Parties, nothing herein,
express or implied,
is intended to or shall confer
upon any other person any legal
or equitable right, benefit or
remedy of any nature whatsoever under or by reason of the Agreement.
9.9
EACH
PARTY ACKNOWLEDGES THAT,
BEFORE EXECUTING THIS
AGREEMENT, SUCH PARTY
HAS HAD
THE OPPORTUNITY TO
SEEK THE ADVICE OF
INDEPENDENT LEGAL COUNSEL
(WHETHER OR NOT IT ACTUALLY ELECTED TO DO SO), AND HAS READ AND UNDERSTOOD ALL
OF THE
TERMS AND PROVISIONS
OF THIS AGREEMENT.
THIS AGREEMENT SHALL
NOT BE
CONSTRUED AGAINST ANY
PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
9.10
original, but all of which taken together will constitute one and the same
instrument. Signatures to the Agreement
transmitted
by electronic mail in .pdf form,
or by any other electronic means
intended to preserve the original
graphic and
pictorial appearance of
a document, will
have the same
effect as physical
delivery of the paper
document bearing
the original signature.
The Parties may
sign the Agreement
using DocuSign, or
any other
electronic signature
application.
9.11
application, the
electronic signatures are
the same as
handwritten signatures for
the purposes of validity,
enforceability, and admissibility and will not dispute the legally binding nature thereof on the basis that the terms
were accepted
with an electronic
signature. Furthermore, the
Parties agree they
(a) shall comply
with all
applicable electronic records and signatures laws, including
but not limited to the Electronic Signatures in Global
and National
Commerce Act; and
(b) shall ensure
that their respective
electronic signatures vendor
has the
necessary processes and controls to comply with the
confidentiality obligations of the Agreement.
Signature Page Follows
9
IN WITNESS
WHEREOF,
Popular, Inc.
Consultant
/s/ Xxxxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Financial Officer
