TRANSACTION PROCESSING AGREEMENT
This agreement effective as of the ________ day of _________________, 2000.
BETWEEN: Corporacion Xxxxx.xxx, S.A., a company incorporated under the laws of
the Republic of Panama, with its registered office located at Ave. Xxxxx
Arosemana y Calle 45, Edificio Dollar, Primer Alto Xx. 0, Xxxxx Xxxxx, Xxxxxx
Xxxx, Xxxxxxxx of Panama; ("eBanx");
AND BETWEEN: El Moro Finance Ltd., a company incorporated under the laws of the
British Virgin Islands, with its registered office located at Xxxxx Xxxxxx, Xxxx
Xxxx, Xxxxxxx, B.V.I., and its licensees, in whole or in part, collectively
referred to as the "Merchant".
WHEREAS:
The Merchant wishes to have eBanx provide on-line financial transaction
processing and eBanx wishes to offer such services to the Merchant.
NOW THEREFORE IT IS HEREBY ACKNOWLEDGED AND AGREED AS FOLLOWS:
1. DESCRIPTION OF SERVICES.
THE EBANX SECURE ECASH SYSTEM (The "Ebanx System") IS NOT A BANK
DEPOSIT ACCOUNT SYSTEM AND EBANX IS THEREFORE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR THE CANADIAN DEPOSIT INSURANCE
COMPANY. MERCHANT ACCOUNT HOLDERS AGREE THAT EBANX SUPPLIES AN ON-LINE
ELECTRONIC CLEARING-HOUSE AND ECASH OWNERSHIP VERIFICATION SERVICE TO
FACILITATE THE COMPLETION OF TRANSACTIONS OVER THE INTERNET AND THROUGH
CALL CENTRES BETWEEN THE MERCHANT, OTHER FINANCIAL INSTITUTIONS AND ANY
OTHER EBANX ACCOUNT HOLDER.
eBanx will provide certain services (the "Services") to Merchant under
this Agreement. The Services will be limited to the sale of eCash for
US currency, the purchase of US currency with eCash, managing the
accounting of Merchant and facilitating and managing the accounting of
End User Account Holder initiated peer-to-peer transfers to any other
eBanx Account Holder or Merchant for any reason supported by the eBanx
System and acting as a third party verifier of eCash ownership as well
as providing customer service and support. eBanx eCash can be purchased
by credit cards, Western Union, Money Gram, bank wire, or cheque or any
other such payment method supported by the eBanx System in the future.
2. SETTLEMENT PROCEDURE.
Merchant agrees that settlement of eCash transactions will be real
time. Merchant further agrees that settlement of currency purchase
transactions will be done same day during the eBanx business day,
Monday to Friday, 8:00 am to 5:00 p.m. Pacific Standard Time, either on
demand or pursuant to a preset settlement schedule.
3. PRIVACY POLICY.
Merchant agrees to follow the eBanx mandated Privacy Policy, attached
hereto as Appendix "A", in its dealings with personal information of
eBanx Account Holders. This privacy policy is subject to change as
outlined from time to time by eBanx.
4. PROCESSING FEES.
Merchant will pay to eBanx fees for all transactions processed as per
the eBanx Merchant fees schedule attached hereto as Appendix "B". The
eBanx Merchant fees schedule can be adjusted from time to time by eBanx
throughout the normal course of business, by giving thirty (30) days
written notice to Merchant by any means including email. Such fees will
be deducted and paid in eBanx eCash prior to disbursement of any funds
to Merchant on a monthly basis. Any fee increases must be directly tied
to cost increases or existing costs that are shown to be larger than
expected by eBanx at the time signing of this agreement.
5. NSF CHEQUES / CHARGEBACKS / HOLDBACKS / EFT REJECTIONS.
eBanx shall be entitled to deduct from any monies otherwise payable to
Merchant, amounts equal to all Account Holder credit card chargebacks,
EFT rejections or NSF cheques related to eCash purchases made by
Account Holder with Merchant. eBanx may at its sole option initiate a
holdback policy, and change such holdback policy upon giving thirty
(30) days notice to Merchant by any means including email.
6. EBANX RULES.
Merchant agrees to conduct business subject to all eBanx rules and
regulations as set by eBanx on the xXxxx.xxx website, from time to time
in the normal course of business. All such rules will be in effect upon
Merchant being given notice in any manner including email of such new
rules or regulations. Specifically, Merchant agrees to follow the eBanx
Customer Services Policy if applicable.
7. LIMITATION OF LIABILITY.
In no event will eBanx or Merchant, or their respective Directors,
Officers, Employees or Agents be liable for any incidental, direct,
indirect, special or consequential damages to the other (including
without limitation, damages for personal injury, loss of profits or
sales, business interruption, loss of business information, data loss
or any other pecuniary loss) in connection with or arising out of this
contract, whether caused by circumstances beyond its control (including
without limitation, computer, utility or remuneration breakdown), or
otherwise. Except as expressly provided herein, there are no
warranties, express or implied, by operation of law or otherwise, for
any services furnished hereunder. In all situations involving
performance or nonperformance of the eBanx System, your sole remedy is
the adjustment or repair of the eBanx System.
eBanx shall not be responsible for any delay in performance when and to
the extent that such is caused in whole or in part, but without
limitation, by any one or more of the following: computer, utility or
communication breakdown, fire, flood, earthquake, strike, material
shortage, lockout, war, revolution, riot, insurrection, or natural act.
eBanx shall not be liable for damages, loss of data, delays, errors or
failure of performance occurring directly or indirectly by reasons of
the above or similar events or occurrences.
No legal action, regardless of form, arising out of, or under this
Agreement, or any matters or transactions thereunder, may be brought
against eBanx or Merchant more than one (1) year after the cause of
action has occurred.
8. ECASH.
Merchant agrees that one (1) unit of eBanx eCash shall be equivalent to
one (1) dollar of the lawful currency of the United States of America,
unless specified otherwise. If this is ever changed it is agreed that
they will have all eCash converted to any other currency valuation
based on the currently existing exchange rates. Merchant further agrees
to accept eBanx eCash as a means of payment for any goods or services
offered by it on its site.
9. WEBSITE.
Merchant agrees that it will show the "eBanx Certified Merchant" button
on the front page of its Website and linking to the home page of eBanx.
Merchant also agrees to put in a number of locations on Merchant
Website the eBanx Privacy Policy button linking to the eBanx Privacy
Policy page, as stipulated by eBanx. Merchant also agrees to have a
Customer Service Button on the front page of Merchant Website linking
to the Merchant Customer Service page and with a link from this page to
the eBanx Customer Service page.
10. TAXES.
Merchant will be responsible for the payment of all property taxes,
duties, levies or other taxes assessed or imposed by the jurisdiction
that the purchase transaction is deemed to occur in for tax purposes.
11. CONTRACT AMENDMENT.
The terms of this contract may be amended unilaterally by eBanx upon
six (6) months advance written notice to Merchant. In the event
Merchant is notified of an amendment, Merchant will have the option of
terminating this contract upon written notice to eBanx, provided that
such notice is received by eBanx at least thirty (30) days prior to the
effective date of the amendment.
12. CONTRACT TERMINATION.
This contract may be terminated by either party for any reason upon 30
days advance written notice to the other party. Notwithstanding any
termination of this contract, Merchant will remain liable to eBanx for
any chargebacks in eBanx Accounts opened for conducting transactions
with Merchant. eBanx shall be entitled to retain any holdbacks held by
it for a period of up to six (6) months after termination.
13. EBANX ACCOUNT HOLDERS.
Merchant agrees that there may be certain jurisdictions that eBanx may
at its sole discretion, for reasons of law or otherwise restrict access
from.
14. CONTROLING LAW.
This Agreement, and all provisions contained herein, shall be
interpreted in accordance with the laws of the Republic of Panama.
15. ARBITRATION.
All claims, demands, or disputes of any kind between the Parties
arising under or related to this Agreement shall first be submitted to
mediation before a single mediator selected by the Parties. If, after
Thirty (30) days after such mediation has been initiated, the dispute
has not been resolved to the satisfaction of both Parties, the Parties
shall then submit the dispute to binding arbitration conducted in the
English language in Xxxxxxxxx, XX, Xxxxxx under the rules of the
International Arbitration Center. Each Party shall select an
arbitrator, after which the arbitrators selected by each Party shall
select a third arbitrator. Any award from the panel of arbitrators
shall be confirmable in any court of competent jurisdiction and shall
be entered as a judgment enforceable by the prevailing Party. Any award
from the panel of arbitrators shall include an award of reasonable
attorneys' fees and costs to the prevailing Party.
16. ENTIRE AGREEMENT.
This Agreement, and any schedules constitute the entire agreement
between the parties and shall supersede any and all prior and
contemporaneous promises, representations and agreements, if any, made
by one party to the other concerning the subject matter of the
Agreement.
17. ADJUSTMENTS.
This agreement may not be released, discharged, supplemented, amended
or modified in any manner except by an instrument in writing signed by
duly authorized representatives of Merchant and eBanx unless as
described herein.
18. ENUREMENT.
This Agreement shall enure to the benefit of and be binding on the
parties to it, the successors and assigns of eBanx and, where approved
in writing, upon Merchant successors and assigns.
19. BONUS PROGRAMS.
All bonus programs administered by eBanx on behalf of the Merchant will
be dealt with on a case by case basis under separate letter of
authority. Merchant assumes all risk of any Merchant initiated program.
20. INITIAL ACCOUNT BALANCES.
Merchant agrees to an initial eCash purchase of US $____________ into
Merchant eBanx Account. Thereafter Merchant will keep a minimum of 5%
of their last 6 months eCash purchase transactions in the Merchant
eBanx Account to be used to pay out any Account Holder Claims or for
any Credit Card Chargebacks, EFT Rejections or NSF cheques. Merchant
agrees that a change in minimum balance may be required by eBanx and
that such amounts will be determined by eBanx in the normal course of
business.
21. CURRENCY PAYOUT.
eBanx and Merchant agree that US dollar currency payouts from the
Merchant Account will be done on a periodic basis mutually agreed by
both. The period of this payout will not be more than a month or less
than a day. The actual payout period will be determined by the eCash
accumulation rates of the Merchant Account and will be adjusted over
time. Any Merchant Agency deals are also to be paid out directly from
Merchant account if applicable under separate agreement between
Merchant and any third party agents. In all cases eBanx fees will be
paid monthly directly from the Merchants eBanx account.
EXECUTION IN COUNTERPART.
This instrument may be executed in counterpart by the parties hereto, in as many
counterparts as may be necessary. Each counterpart shall be deemed to be an
original forming one and same instrument, each of which shall bear the date
first written above.
ACKNOWLEDGED AND AGREED TO BY:
CORPORACION XXXXX.XXX, S.A. EL MORO FINANCE LTD.
/s/ Xxxxxx Xxxxxx /s/ Xxx Xxxxx Xxxxxxxxxx
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By: Xxxxxx Xxxxxx By: Xxx Xxxxx Xxxxxxxxxx
Secretary
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Title: Corporate Secretary Title: Director
/s/ Xxxxxxx Xxxx
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By: Xxxxxxx Xxxx
