SERVICE AGREEMENT
Exhibit
10.6
THIS SERVICE AGREEMENT (the
"Agreement") is entered into this 31st day of July, 2008 and shall become
effective upon the date the Transaction, as described below, is consummated (the
“Effective Date”), by and between LaSalle Bank, N.A., a national
banking association, with offices located at 000 X. Xxxxx Xxxxxx, Xxxxxxxxx,
XX 00000 ("Bank") and Netcom Data Corp., a Georgia Corporation,
located at 000 Xxxxxx Xxxxxx, Xxxxx X, Xxxxxxx, XX 00000
("Company").
RECITALS
WHEREAS, Netcom Data Corp.
(“Netcom GA”) and Michigan National Bank entered into an Independent Sales
Organization Agreement on or about February 2, 1995 which agreement has been
amended from time to time and provides for the customers of Netcom GA to utilize
the merchant processing services offered by Bank and marketing of Bank’s
merchant processing services by Netcom GA to prospective customers (the “Netcom
GA Agreement”); and
WHEREAS, Netcom Data Corp. of
N.Y (“Netcom NY”) and Michigan National Bank entered into an Independent Sales
Organization Agreement dated on our about May 2, 1997 which agreement has been
amended from time to time and provides for the customers of Netcom NY to utilize
the merchant processing services offered by Bank and marketing of Bank’s
merchant processing services by Netcom NY to prospective customers (the “Netcom
NY Agreement” together with the Netcom GA Agreement collectively referred to as
the “Netcom Agreements”); and
WHEREAS, Bank is the successor
to Michigan National Bank, and Bank was subsequently acquired by Bank of America
Corporation. Bank now offers merchant processing services through
LaSalle Merchant Services, LLC a Bank of America affiliate; and
WHEREAS, Netcom GA notified
Bank of their intentions to sell all or substantially all of their stock to
United eSystems, Inc. and Netcom NY notified Bank of their intentions to sell
all or substantially all of their assets to United eSystems, Inc. following
which Netcom GA will become a wholly owned subsidiary of United eSystems, Inc.
and the assets of Netcom NY will be transferred to Netcom GA (collectively
“Transaction”); and
WHEREAS, Pursuant to the terms
of the Netcom GA Agreement and the Netcom NY Agreement, Bank has elected upon
consummation of the proposed Transaction, to terminate each agreement, but
desires to maintain certain services currently provided under each agreement and
have Netcom GA provide such services in accordance with the terms and conditions
set forth herein; and
NOW, THEREFORE, in
consideration of the promises, mutual agreements, representations and warranties
hereinafter set forth and for other good and valuable consideration, both the
receipt and legal sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. TERMINATION
OF NETCOM GA AND NETCOM NY AGREEMENTS
The Netcom Agreements shall be
terminated on the Effective Date, except with respect to any terms which survive
such termination. As of the Effective Date, Bank and Company shall
take all actions necessary to terminate the sponsorship by Bank of Netcom GA and
Netcom NY as Independent Sales Organization with Visa, Inc. and Member Service
Provider with MasterCard International, Inc. respectively (Visa and MasterCard
shall collectively be referred to as the “Card
Organizations”). Netcom GA and Netcom NY shall cease any merchant
processing marketing activities on behalf of Bank as of the Effective Date of
this Agreement. No new merchants or additional locations to existing
merchants shall be accepted by Bank. Any marketing materials,
collateral, merchant agreements or the like containing Bank’s name or references
to its merchant products or services shall be destroyed
immediately.
2.
DUTIES OF COMPANY
A. Services
Generally. During the term of this
Agreement, the Company shall perform the services described below (“Services”)
to the merchants listed in Exhibit D that were sourced through both the Netcom
NY and Netcom GA Agreements (“Merchants”). Company will use
reasonable care, and that degree of skill and attention recognized as industry
standards in performing the Services. Company shall perform all
Services to Merchants in accordance with the terms of this Agreement, Company's
policies and procedures, requirements of law, and all applicable operating
regulations of the Card Associations.
B. Equipment
Maintenance Services. Company shall be
responsible for all maintenance and servicing of point of sale devices that
Company has previously installed and programmed for
Merchants. Service requests shall be responded to within 24 hours of
receiving such requests.
All maintenance, programming and other
services provided by Company shall meet the material specifications provided by
Bank to Company and shall at all times comply with the written rules,
regulations, procedures and requirements of the Card Organizations including but
not limited to the Payment Card Industry Data Security Standards (“Operating
Regulations”). Company shall be responsible for the direct liability
incurred by Merchants (or the Bank as an acquirer) arising from equipment that
has been supplied and serviced by Company during the term of the Netcom
Agreements and this Agreement.
C. Supplies.
Company
shall be responsible for ordering all supplies required to maintain Merchant’s
point of sale equipment requested by Merchants. Company shall provide
all billing and collect all charges in connection with such
service.
D. Merchant
Rate Reviews. Company, shall respond
to all requests by Merchant to modify Merchant’s existing merchant discount
rates and related pricing components. Company shall be responsible
for any communications related to the Merchant’s modified pricing structure,
except that Bank shall continue to be responsible for mandates and pricing
changes resulting from the Card Organizations and/or any pricing changes related
to Exhibit A either of which shall be passed through to
Merchants.
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E. Merchant
Losses.
a. Company will reimburse Bank for all
losses incurred by Bank for any reason attributable to a Merchant (“Merchant
Losses”) that relate to: (i) a merchant transaction; or (ii) an act or omission
of the Merchant pursuant to agreement between Bank and Merchant (“Merchant
Agreement”) which is dated during the period beginning on the effective date of
the Merchant’s Merchant Agreement and ending 12 months after the date the first
Sales Draft Transmittal is received by the Bank (“Company Loss
Period”).
b. Bank will be responsible
for all Merchant Losses that relate to: (i) a transaction; or (ii) an act or
omission of the Merchant pursuant to the Merchant Agreement which is dated after
the Company Loss Period.
c. Uncollected
Merchant Fees will be borne by Company.
d. The Bank will send to
Company a monthly report which details Potential Merchant Losses and Merchant
Losses for which Company is responsible as set forth above. Once the
Potential Merchant Losses and Merchant Losses have been realized by Bank, Bank
shall pursue collection utilizing its usual loss collection
procedures.
e. Notwithstanding the
above, Company will not be responsible for Merchant Losses which are due to the
Bank’s failure to comply with, use or enforce the Bank’s established or usual
fraud monitoring procedures including, but not limited to, a failure by the Bank
to terminate a Merchant Agreement when the Bank has knowledge of fraudulent
merchant activities.
3. AUDITS
Bank, its regulators, or its designees
shall be permitted, at any time during normal business hours and upon two (2)
business days advance notice, to conduct an audit and review of the compliance
with the terms of this Agreement and Operating Regulations. If,
during or after the audit and review, Bank determines that Company is not in
compliance with this Agreement, Bank shall meet with Company to discuss the
changes that need to occur to resolve Company's non-compliance. So long as
Company is attempting to resolve any non-compliance issues and such
non-compliance issues are within the authority of Company to control, such
non-compliance shall not be considered a breach of this Agreement.
4. NON-
SOLICIT
As consideration for the compensation
set forth in Section 5 below, and as long as the consideration continues to be
paid, Company, its officers, director’s, affiliates and employees agree they
will not, directly or indirectly, solicit any Merchants (listed in Exhibit D),
for merchant credit or debit card processing services or related services,
except that Bank agrees that Company may solicit Merchants for the products and
services listed in Exhibit C of this Agreement.
In
addition, Bank agrees that Company may, without breaching this Section, respond
to an inquiry by Merchant to seek alternative processing services under the
following conditions:
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a) If the Merchant identifies a
material service issue related to services provided by Bank and Company is
unable to convince the Merchant to maintain the service with Bank;
b)
Merchant has been notified of a change in pricing (excluding Card Association
interchange and mandates) for services, which it finds unacceptable or it
provides a bona fide offer for processing services from another financial
institution, which the Bank is unable or unwilling to match;
(c) Bank ceases paying compensation due
Company under this Agreement without cause. For the purposes of this
sub-section, “Cause” shall be defined as a violation of this Section 4 or
Section 5.3. of this Agreement.
In
the event any of the above conditions occur and Merchant contacts Company,
Company shall provide notice to Bank and if any of these conditions are curable
by Bank, Bank shall have three (3) business days to cure the problem or take no
action, in which case Company may without any further notice to Bank, place the
Merchants processing business with another financial institution.
Bank
acknowledges that certain of the Merchants have been provided by Company to Bank
from the sales efforts of Company’s independent agents and that Company has no
control over the actions of these independent agents. Any action of
these independent agents in soliciting Merchants shall not be deemed a violation
of this Section 4.
Company
acknowledges that in the event of a breach of this Section 4, Bank may terminate
the compensation set forth in Section 5 below immediately.
5.
COMPENSATION
5.1 Compensation. In
fulfillment of its obligations contained in the Netcom Agreements and for as
long as those Merchants listed in Exhibit D continue utilizing the processing
services of Bank (except as otherwise provided herein) and in consideration of
the services set forth in this Agreement, Bank shall calculate the compensation
to Company in accordance with the rates described in Exhibit A, attached hereto
and incorporated herein by reference. Compensation will be calculated each month
by taking the total amount of processing fees and other charges collected by
Bank for all Merchants, less the total dollar amount of fees described in
Exhibit A, less any Merchant Losses, plus any recoveries by Bank that were
previously assessed to Company as Merchant Losses. No other
compensation or payments will be owed by Bank to the
Company. Company shall be responsible for any and all out of
pocket expenses related to its obligations set forth in Section 2
above.
5.2 Payment. Compensation
will be computed monthly as of the last day of each calendar month, and will be
paid to Company within twenty (20) days following the last day of the
month. The computation of the compensation will be based on the
actual dollar amounts listed in Exhibit A except for the authorization and data
capture fees listed in Section C of Exhibit A which will be
estimated. An adjustment to reconcile the estimated authorization and
data capture fees with the actual authorization and data capture fees will be
credited or debited to the following month’s
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compensation. At
the time of each payment, Bank will deliver to Company a statement detailing the
computations used by Bank in arriving at the compensation paid to
Company.
5.3 Termination of
Compensation. Notwithstanding the foregoing, Bank shall
not be obligated to pay Company any compensation if (i) the Card Organizations
prohibit Bank from providing the merchant services provided by Bank, (ii)
Company engages in any intentional activity with respect to its obligations
under this Agreement which materially adversely affects Bank’s ability to
provide its processing services or adversely affects Bank’s reputation, (iii) a
controlling interest in any class of voting shares is sold or acquired by
another or if substantially all of Company’s assets are sold or otherwise
transferred to another (excluding the current Transaction) or (iv) this
Agreement is terminated for a breach of Section 4 or this Section
5.3.
5.4 Setoff. In the
event that Company breaches this Agreement, Bank shall have the right to set off
from the compensation due Company in this Section 5 by the actual amount of loss
incurred by Bank and directly caused by such breach.
6. REPRESENTATIONS
AND WARRANTIES
6.1 Representation and Warranties of
Company. Company hereby represents and warrants to Bank as
follows:
A. Company
is a corporation authorized, validly existing and in good standing under the
laws of the State of Georgia, and has its principal office located in the State
of Georgia.
B. Company
has full authority and corporate power to enter this Agreement and perform its
obligations hereunder.
C. Company
has and shall maintain throughout the term of this Agreement all necessary
facilities, manpower, equipment, supplies, insurance, and such other resources
as are necessary to provide the Services.
D. The
Services provided by Company will be performed in a business-like manner and in
accordance with this Agreement, the Operating Regulations of the Card
Organizations and all applicable requirements of law.
E. Company’s
performance of this Agreement will not violate any applicable law or
regulation.
F. This
Agreement represents a valid obligation of Company and is fully enforceable
against Company according to its terms.
G. Company
will comply with the applicable terms and conditions of this Agreement and with
the Operating Regulations of the Card Organizations.
H. Company
is not knowingly in violation of any terms and conditions of this Agreement or
the Operation Regulations of the Card Organizations.
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6.2 Representations and Warranties of the
Bank. The Bank hereby represents and warrants to Company
that:
A. The
Bank is a national banking association duly authorized and validly existing
under the laws of the United States, having its principal offices located in the
State of North Carolina.
B. The
Bank has full authority and corporate power to enter into this Agreement and to
perform its obligations hereunder.
C. Except
as otherwise set forth in Section 4 and Section 5.3 of this Agreement, Bank
shall continue to pay Company compensation as set forth herein for as long as
Merchants listed in Exhibit D continue to process with Bank.
D. Bank
knows of no previous actions of Company that would be considered a violation of
this Agreement, the Operating Regulations of the Card Organizations or previous
Agreements with Bank.
E. Bank
has been appraised of the series of Transactions between Netcom NY, Netcom GA
and United eSystems, Inc. and Bank does not object to the Transactions and such
Transactions do not violate and shall not be considered a violation of this
Agreement or any previous Agreements between the parties.
F. Bank,
its officers, directors, affiliates, subsidiaries, and assigns shall not solicit
Merchants on Exhibit D to transfer credit and/or debit transaction processing
services in any manner that results in the cessation of Compensation to
Company.
G. Bank
acknowledges and does not object to the fact that Company has or may have in the
future, merchant and/or debit processing agreements with other vendors and that
this Agreement expressly does not imply an exclusive rights to such services
between Company and Bank and furthermore does not and will not constitute a
violation of this Agreement.
H. Bank
has represented to Company that it is not necessary for Bank to obtain a letter
from the Card Organizations confirming that the termination of Netcom GA and
Netcom NY as independent sales organizations with Visa and MasterCard while
continuing to meet their obligations under this Agreement are not considered a
violation of the Operating Regulations of the Card Organizations (provided that
Company does not engage in any practice where they obtain cardholder
information), and accordingly such terminations shall not be considered a
violation of this Agreement nor shall they constitute a reason for cessation of
commissions under this Agreement.
7.
TERM; TERMINATION; DEFAULT; DISPUTE RESOLUTION; REMEDIES
7.1 Term. This
Agreement shall become effective on the Effective Date, and unless terminated
pursuant to the terms of this Section 7 of this Agreement, shall remain in
effect for a period of four (4) years from the Effective Date (“Initial Term”)
and shall automatically renew for one (1) year periods (each of which will be
referred to as a “Renewal Term”) unless either
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party
provides the other with written notice of termination at least 4 months prior to
the end of the Initial Term or any Renewal Term. Except as otherwise provided in
Section 4 or Section 5.3 of this Agreement, regardless of termination of
this Agreement by its term, Compensation will
continue for as long as those Merchants listed in Exhibit D continue utilizing
the processing services of Bank.
7.2 Termination. Notwithstanding
the above, the parties shall have the following rights:
A. If,
through no actions on the part of Bank, Visa or MasterCard prohibits Company
from providing, or prohibits the Bank from allowing Company to provide, the
Services provided for under this Agreement, this Agreement shall be
automatically terminated.
B. If
Visa or MasterCard prohibits the Bank from providing, or the Bank’s membership
in Visa or MasterCard is changed through no action on Bank’s part so that it can
no longer provide, the Services under this Agreement, this Agreement shall be
automatically terminated.
C. If
Company: (i) changes any procedures or processes which the Bank in
good faith determines is adverse to the Bank, and (ii) fails to correct such
procedure or process in a way that is not adverse to the Bank after 30 days
written notice, the Bank may terminate this Agreement upon 6 months prior
written notice. Notwithstanding the preceding sentences in this
Subsection, Bank may not terminate the Agreement if such change is a requirement
of Visa, MasterCard, Federal or state regulatory agency, or law.
D. If
the Bank: (i) changes any procedures or processes which Company in
good faith determines is adverse to Company, and (ii) fails to correct such
procedure or process in a way that is not adverse to the Company after 30 days
written notice, Company may terminate the Agreement upon 6 months prior written
notice. Notwithstanding the preceding sentences in this Subsection,
Company may not terminate the Agreement if such change is a requirement of Visa,
MasterCard, Federal or state regulatory agency, or law.
E. If
Company enters into a purchase or stock exchange agreement with a third party
which would effectuate a sale of Company’s business, the Bank shall have the
right to terminate this Agreement immediately.
F. If
an Event of Default described in 7.3 occurs, either party may terminate this
Agreement immediately. If this Agreement is terminated due to an
Event of Default by Bank then Company shall be relieved of its obligations under
Section 4 of this Agreement.
7.3 Default. Each of
the following acts or occurrences shall constitute an Event of Default under
this Agreement.
A. A
material breach by either party of its obligations or duties under this
Agreement.
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B. Either
party shall fail to pay the other party when due any payment, credit or other
amount due under this Agreement and such failure shall continue for a period of
30 days after written notice thereof has been sent by either party to the other
party;
C. Either
party shall: (i) file for bankruptcy, receivership, insolvency,
reorganization, dissolution, liquidation or any similar proceedings applicable
to national banking associations or corporations, as applicable, or (ii) have
such a proceeding instituted against it by a party other than the Bank and such
proceeding is not dismissed within 60 days;
D. Any
material representation or material warranty made by a party to the other shall
prove to have been false or misleading in any material respect as of the date
made, or shall become false or misleading at any time during the term of this
Agreement and has not otherwise been corrected;
E. Company
(i) knowingly engages in activities which repeatedly and materially violate the
Operating Regulations of the Card Organizations or which cause the Bank to
repeatedly and materially violate the Operating Regulations of the Card
Organizations; (ii) operates in an unsound, unsafe manner; or (iii) engages in
activities which result in material economic hardship and/or damage to the
goodwill of the Bank, Visa or MasterCard.
7.4 Dispute
Resolution Process.
A. Upon
written notice, Company and Bank will attempt to resolve any dispute between
them within 30 days. Such resolution will be contained in a writing
signed by both parties.
B. In
the event that a material dispute cannot be resolved within 30 days of written
notification, the non-breaching party may avail itself of the remedies set forth
in Sections 7.5 and 7.6.
7.5 Remedies of
Company. Upon the occurrence of an Event of Default set forth
in Section 7.3 above, and after the parties have first followed the process
described in Section 7.4 above, Company will have the right to
immediately terminate this Agreement in whole or in part upon written notice to
the Bank; and all other remedies available at law or in equity which Company may
elect to pursue, all such remedies being cumulative.
7.6 Remedies of the
Bank. Upon the occurrence of an Event of Default set forth in
Section 7.3 above, and after the parties have first followed the dispute
resolution process described in Section 7.4 above, the Bank will have
the following remedies:
A. The
right to immediately terminate this Agreement in whole or in part upon written
notice to Company; and
B. The
right to immediately withhold disputed payments until the dispute is resolved;
and
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C. All
other remedies available at law or in equity which Bank may elect to pursue, all
such remedies being cumulative.
7.7 Indemnification
A. Company
will indemnify and hold the Bank harmless from and against any and all third
party claims alleging liabilities, fees, losses, increased taxes or expenses,
including without limitation, court costs and reasonable attorney’s fees
(including allocated costs of internal counsel), which the Bank may incur or
which may be claimed against the Bank or the Card Associations by such third
party as a result of: (i) specific acts or omissions of Company, its directors,
officers, employees or agents relating to the exercise of, or the failure to
exercise, Company’s rights and obligations under this Agreement; (ii) fraudulent
acts or omissions of Company, it’s directors, officers, employees or agents; or
(iii) any failure by Company to comply in all respects with any applicable rules
issued by Visa and/or MasterCard, as amended from time to time.
B. The
Bank will indemnify and hold Company harmless from and against any and all third
party claims alleging liabilities, fees, increased taxes or expenses, including
without limitation, court costs and reasonable attorney’s fees (including
allocated costs of internal counsel), which Company may incur or which may be
claimed against Company by such third party as a result of acts or omissions of
the Bank, its directors, officers, employees or agents relating to the exercise
of, or the failure to exercise, the Bank’s or Card Organization’s rights and
obligations under this Agreement.
C. This
Section 7.7 will survive termination of this Agreement.
8. CONFIDENTIALITY
A. In
order to perform the duties hereunder, each party will necessarily receive and
have access to confidential and proprietary information, including information
on the Merchants, (“Confidential Information”) of the other. The
parties understand that they are in a position of trust and confidence in
relation to this Confidential Information and agree that: (i) all
such Confidential Information is and will remain the property of the party
furnishing the Confidential Information, (ii) the parties will use all
reasonable means to safeguard such Confidential Information, and in any event,
the parties will use means not less than those used to protect their own
confidential information, (iii) the parties will not copy, publish, disclose to
others, or use such Confidential Information for any purposes other than for the
fulfillment of their obligations under this Agreement, (iv) the parties will
retain all materials relating to Confidential Information on its premises and
will not move them without the express written consent of the other and (v) each
will promptly return all copies of Confidential Information to the other upon
request at the termination of this Agreement.
B. Notwithstanding
anything to the contrary contained in this Agreement, the receiving party will
have no obligation to preserve the confidential nature of any Confidential
Information which: (i) was previously known to the receiving party
from a source other than the providing party as evidenced by the written records
of the receiving party; (ii) is disclosed to third parties by the providing
party without restriction; (iii) is or becomes available to any
9
member
of the public by other than unauthorized disclosure; (iv) was or is
independently developed by the receiving party as evidenced by the written
records of the receiving party the basis of which was obtained from a source
other than the providing party; (v) is released for disclosure by the providing
party with its written consent; or (vi) is rightfully received by the receiving
party from a third party.
C. Disclosure
of such Confidential Information will not be precluded if disclosure
is: (i) in response to a valid order of a court or other governmental
body of the United States or any political subdivision thereof; provided,
however, that the party making the disclosure pursuant to the order will first
have given notice to the other party; or (ii) otherwise required by law; or
(iii) necessary to establish rights under this Agreement; or (iv) is required by
Visa or MasterCard.
D. Upon
request, the receiving party will either exercise reasonable effort to return
all Confidential Information received in tangible form to the providing party or
destroy all such Confidential Information. Nothing contained in this
Agreement will be construed as granting or conferring any rights by license or
otherwise in any Confidential Information disclosed to the receiving
party.
E. This
Section 8 will survive termination of this Agreement.
9. Use
of Names, Logos and Trademarks.
Company
will not use the Bank’s name, logos or trademarks in any way, without the prior
written consent of the Bank. Company shall submit for prior approval
by Bank, any communications to Merchants that utilize the Bank’s name, logo or
trademarks.
In addition, Company may not use any of
the Visa, MasterCard, American Express, Diner’s Club or Discover logos or
trademarks on any materials without the Bank’s prior written
consent. Company will have no authority to permit use of the
trademarks owned by Visa, MasterCard, or the Bank by any of its own
agents.
10.
ADDITIONAL PROVISIONS
10.1 Expenses. Except as
otherwise expressly set forth herein, any other costs, expenses, or other
charges incurred by either of the parties hereto shall be borne by the party
incurring such cost, expense or charge whether or not the series of transactions
contemplated hereby shall be consummated.
10.2 Notices. Except
as otherwise expressly set forth herein, any notice, payment,
demand or any other communication required or permitted to be given
hereunder shall be in writing and delivered via by hand or overnight courier or
faxed to the applicable party or parties at the address indicated
below:
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| If to Company: | If to Bank: | |
|
Netcom
Data Corporation
000
Xxxxxx Xxxxxx
Xxxxx
X
Xxxxxxx,
XX 00000
|
Bank
of America, N.A.
000
X. Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
|
|
Attn:
Xxxx Xxxxxxx
Facsimile:
000-000-0000
|
Attn: Xxxxxx
Xxxxx
Facsimile: 000-000-0000
|
|
|
With
copies to:
|
||
|
______________________
|
Associate
General Counsel
Merchant
Services
NC1-002-29-01
000
X. Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Counsel
|
or,
as to each party at such other address as may be designated from time to time by
such party or parties by like notice to the other parties, complying with this
Section. All such notices, payments, demands or other communications
shall be deemed validly given and legally effective when received.
10.3 Severability. If any term or
condition of this Agreement should be held invalid by a court, arbitrator or
tribunal of competent jurisdiction in any respect, such invalidity shall not
affect the validity of any other term or condition hereof. If any
term or condition of this Agreement should be held to be unreasonable as to
time, scope or otherwise by such a court, arbitrator or tribunal, it shall be
construed by limiting or reducing it to the minimum extent so as to be
enforceable under then applicable law. The parties hereto acknowledge that they
would have executed this Agreement with any such invalid term or condition
excluded or with any such unreasonable term or condition so limited or
reduced.
10.4 Entire Agreement and
Amendments. This Agreement constitutes the entire agreement of
the parties with regard to the specific subject matter hereof and supersedes all
prior written and/or oral understandings between the parties. This Agreement may
not be amended except pursuant to a writing signed by the parties.
10.5 Waiver. Any waiver
by either party of a breach of any provision of this Agreement shall not operate
as or be construed to be a waiver of any other breach of such provision or of
any breach of any other provision of this Agreement. Any waiver must
be in writing and signed by the party to be charged therewith.
10.6 Assignment. Neither
party shall assign this Agreement without the written consent of the other and
such consent shall not be unreasonably withheld. Bank may assign any or all of
its rights hereunder to any affiliate or subsidiary of Bank of America
Corporation. Any such assignment shall not relieve Bank from its obligations
hereunder.
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10.7 Other
Documents. Any list, summary or other document provided or
delivered pursuant to this Agreement or in connection with the transaction
contemplated hereby are incorporated herein by this reference and made a part
hereof.
10.8 Construction. The
parties agree that this Agreement shall be governed, enforced by and construed
in accordance with the laws of the State of North Carolina.
10.9 No Third Party
Beneficiaries. This Agreement is for the sole and
exclusive benefit of the parties hereto; nothing in this Agreement shall be
construed to grant to any person other that the parties hereto, and their
respective successors and permitted assigns, any right, remedy or claim under or
in respect of this Agreement or any provision hereof.
10.10 Further
Assurances. The parties hereto hereby agree to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as either may at any time reasonably
request in order to better assure and confirm unto each party their respective
rights, powers and remedies conferred hereunder.
10.11
Arbitration. All claims, demands, disputes, controversies,
differences or misunderstandings arising out of or relating to this Agreement,
or the failure or refusal to perform the whole or any part hereof, shall be
settled by arbitration conducted in Charlotte, NC by the American Arbitration
Association ("AAA") in accordance with the rules thereof then
pertaining. The parties hereby submit themselves to the exclusive
jurisdiction of the courts of the State of North Carolina in any proceeding for
the enforcement of the award rendered by the arbitrators, and agree that
judgment upon such award may be entered in any court, in or out of the State of
North Carolina, having jurisdiction thereof. The fees of the AAA
shall be borne by the parties equally.
10.12 Counterparts. Provided
that all parties hereto execute a copy of this Agreement, this Agreement may be
executed in counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument. The
parties acknowledge that delivery of executed copies of this Agreement may be
affected by facsimile or other comparable means.
10.13 Headings. The
headings contained herein are included solely for case of reference and in no
way shall limit, expand or otherwise affect either the substance or construction
of the terms and conditions of this Agreement or the intent of the parties
hereto.
10.14 No Agency. The
parties agree that in performing their responsibilities pursuant to this
Agreement, they are in a position of independent contractors. This
Agreement shall not be deemed to constitute the parties hereto as partners or
joint venturers, and neither party hereto shall be deemed to be an agent of any
nature, kind and description whatsoever of the other.
10.15 Security
Deposit. Security deposits for Netcom GA and Netcom NY will be
returned upon execution of the Agreement to Netcom GA.
10.16
Defined Terms. Except as specifically modified or re-defined
by this Agreement, the defined terms used in this Agreement shall be the same as
used in the Netcom Agreements.
12
IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the day and year first above written.
|
COMPANY:
|
BANK:
|
|||
|
Netcom
Data Corporation
|
LaSalle
Bank, N.A.
|
|||
|
By:
|
/s/ XXXXXXX X. XXXXXXX |
By:
|
/s/ XXXXXX XXXXX | |
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
Name:
|
Xxxxxx
Xxxxx
|
|
|
Title:
|
President
|
Title:
|
Merchant
Services Executive
|
|
| 7/30/2008 | ||||
13
