SERVICES AGREEMENT
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THIS SERVICES AGREEMENT (the "Agreement"), dated as of September 1,
2000, by and between Xxxxxxxxxxx.xxx, Inc., a Florida Corporation
("Wealthhound"), having its principal place of business at 00 Xxxxxxxx,
Xxxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and RichMark Capital Corporation, a Texas
Corporation ("RichMark"), having a principal place of business at 0000 Xxxxx
XxXxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (individually, a "Party";
collectively, the "Parties").
W I T N E S S E T H:
WHEREAS, Wealthhound owns and operates a web site at
xxxx://xxx.xxxxxxxxxxx.xxx (the "Web Site") designed to offer various financial
and related services to users on the Internet ("Users");
WHEREAS, RichMark is an authorized and registered broker-dealer and a
member of the National Association of Securities Dealers, Inc. ("NASD") and the
Securities Investment Protection Corp. ("SIPC");
WHEREAS, on or about January 1, 2000, Wealthhound orally engaged
RichMark to offer financial and securities services to Users on the Web Site,
including without limitation, brokerage accounts and on-line trading services;
WHEREAS, Wealthhound and RichMark desire, subject to the terms and
conditions stated below to memorialize their oral agreement in writing;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Parties agree as follows:
1. RESPONSIBILITIES OF THE PARTIES.
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1.1 Wealthhound presently owns a full service financial Web Site which offers
Users a host of financial services, including without limitation, mortgage
services, insurance, and certain e-commerce applications. Among the various
sections of the Web Site, Wealthhound shall maintain a series of web pages (the
"Financial Pages") devoted entirely to securities, brokerage and execution
services. Wealthhound shall maintain a prominent button entitled "Invest or
Trade" on both the home page and on the navigational bar located on each of the
following web pages on the Web Site, which will link Users to the Financial
Pages. RichMark will actually execute the various Services (as defined below)
available on the Financial Pages, Wealthhound shall provide the interface and
applications by which Users will be able to take advantage of these Services,
including without limitation, registration fields where Users will be prompted
to submit their personal information to enable RichMark to open brokerage
accounts (the "Account") and other web pages upon which Users will place their
trading orders that RichMark will execute. Wealthhound shall also be responsible
for maintaining these Financial Pages and ensuring that any User information
collected thereon will be both secure and transmitted directly
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to RichMark. During the Term (as defined below) of this Agreement, RichMark will
exclusively execute securities trades on the Web Site.
1.2 In addition to the Services available on the Financial Pages, Wealthhound
shall offer Users the ability to take advantage of such Web Site features as a
stock quote ticker, financial news and various wireless services. Such costs, if
any, will be the responsibility of Wealthhound.
1.3 Within the confines of the Financial Pages, RichMark will offer the
following services to Users: (i) the option of setting up a number of different
types of Accounts for each User that agrees to submit the necessary personal and
financial information on the Web Site including a deposit or transfer of funds;
(ii) the execution of securities trades on behalf of those Users who have
obtained Accounts via the Web Site; (iii) such other financial services that
RichMark offers or may offer in the course of its normal business offerings (the
"Services").
1.4 Wealthhound shall clearly state on each of the Financial Pages that the
securities products are being offered by RichMark. Wealthhound shall also
prominently state on those Financial Pages where actual transactions are
occurring: "General securities offered through RichMark Capital Corporation,
member NASD and SIPC." Wealthhound agrees to abstain from referring to any of
the brokerage accounts of the Users as "Wealthhound Brokerage Accounts" and may
refer to them on the Web Site as either "Your Brokerage Account" or "RichMark
Brokerage Account." Wealthhound shall also comply by inserting all other
statements and/or disclaimers on the Web Site as necessary to comply with the
rules of the National Association of Securities Dealers.
1.5 Web Site changes must be submitted to RichMark at least 10 days prior to
release to allow RichMark the opportunity to review and submit to NASD
Advertising, if required.
2. TERM.
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2.1 The term of this Agreement shall commence on the date hereof and shall
continue for a period of six (6) months, unless sooner terminated by Wealthhound
or RichMark as provided below. Following the date that is the two month
anniversary of the date hereof, each party shall have the right to terminate
this Agreement with or without cause upon providing the other Party with at
least thirty (30) days prior written notice of its intent to terminate this
Agreement (the "Term"). If "Payment" described in 3.1 below, is Delinquent for
more that 30 days, RichMark may terminate this Agreement as provided below,
subject to the cure provision.
3. PAYMENT.
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3.1 During the Term, Wealthhound shall remit to RichMark five thousand ($5,000)
dollars each month in consideration of the Services hereunder (the "Fees"). The
Fees shall be payable directly to RichMark and must be received by RichMark on
the fifteenth (15th) day of every month. Should the Fee become more than 30 days
delinquent, RichMark may in its sole discretion terminate this agreement by
written notification, fax, e-mail or otherwise to Wealthhound. In the event
Wealthhound is Delinquent, Wealthhound shall have the right to cure
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such Delinquency within 30 days after actual receipt by Wealthhound of written
notice of the intent to terminate the Agreement.
3.2 RichMark may earn commissions from the execution services provided to its
customers. These commissions will not be shared with Wealthhound as Wealthhound
is not a NASD member.
4. GRANT OF CUSTOMER LISTS LICENSE.
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4.1. During the Term and thereafter, RichMark hereby grants to Wealthhound,
subject to the terms and conditions contained herein, a perpetual, worldwide,
royalty-free license ("License") to access and use RichMark's customer lists and
customer information which RichMark obtained and accumulated via the Web Site
(the "Customer Lists"), including without limitation, all credit, financial and
customer contact information. The license fee for the License shall be one
payment of $20,000.00. In the event Wealthhound, or a subsidiary thereof, either
purchases and/or becomes a registered broker-dealer itself, and is thereby
permitted to offer and sell securities on its own, the Parties acknowledge and
agree that Wealthhound may compete directly with RichMark by soliciting those
customers on the Customer Lists and may provide services competitive to the
Services provided by RichMark hereunder to the customers.
5. TRADEMARK LICENSE.
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5.1 RichMark hereby grants to Wealthhound a world-wide, non-exclusive,
royalty-free license to use its trademarks, service marks, trade name and logos
(the "Marks") on the Web Site and on any other promotional and marketing
materials with prior written approval from RichMark in connection with the
Services hereunder for the Term of the Agreement.
5.2 Upon termination or expiration of this Agreement, Wealthhound shall cease
using RichMark's Marks.
6. REPRESENTATIONS AND WARRANTIES.
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6.1 Wealthhound hereby represents and warrants as follows:
6.1.1 Wealthhound will comply with all applicable federal, state, local and
administrative laws in the performance of its obligations hereunder, including
but not limited to, laws pertaining to the protection of personal and personally
identifiable information;
6.1.2 The execution, delivery and performance of this agreement has been duly
authorized by all corporate action on the part of Wealthhound, and this
agreement constitutes the valid and binding obligations of Wealthhound,
enforceable against WealthHound in accordance with the terms herein;
6.1.3 Neither the execution and delivery by Wealthhound of this Agreement, nor
the consummation by Wealthhound of the transactions contemplated hereby, nor
compliance by Wealthhound with the provisions hereof, conflict with or result in
a breach of any of the
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provisions of the certificate of incorporation of Wealthhound or any amendments
thereto, or any applicable law, judgment, order, writ, injunction, decree, rule
or regulation of any court, administrative agency or other governmental
authority, or of any agreement or other instrument to which Wealthhound is a
party or by which it is bound, or constitutes a default under any provision
thereof.
6.1.4 Wealthhound is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida, and is duly qualified and
authorized to do business and is in good standing in all jurisdictions in which
the nature of its business requires such qualifications except where the failure
to so qualify would not have a material adverse effect on the transactions
contemplated hereby.
6.2 RichMark hereby represents and warrants as follows:
6.2.1 RichMark shall comply with all applicable federal, state and local laws
and regulations in the performance of its obligations hereunder, including those
entailed by the provisions of securities brokerage services to Wealthhound
customers. Such laws shall be deemed to include without limitation, the
registration and other requirements set forth in the Securities Exchange Act of
1934 and those regulations of the National Association of Securities Dealers,
Inc.;
6.2.2 The execution, delivery and performance of this Agreement has been duly
authorized by all appropriate corporate action on the part of RichMark, and this
Agreement constitutes the valid and binding obligation of RichMark, enforceable
against RichMark in accordance with the terms herein;
6.2.3 RichMark owns all right, title and interest in and to the Marks and
Customer Lists throughout the world and/or possesses the requisite authority to
sublicense the Marks and the Customer Lists to Wealthhound. RichMark's use of
the Marks will not violate or infringe the intellectual property rights, or any
other right of any third party, or result in any tort, injury, damage or harm to
any third party;
6.2.4 RichMark is a corporation duly organized, validly existing and in good
standing under the laws of the State of Texas, and is duly qualified and
authorized to do business and is in good standing in all jurisdictions in which
the nature of its business requires such qualifications except where the failure
to so qualify would not have a material adverse effect on the transactions
contemplated hereby;
7. INDEMNIFICATION.
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7.1 Each Party agrees to indemnify, defend and hold harmless the other Party,
its parent, subsidiaries, affiliates, successors, assigns, directors, officers,
agents or employees from and against any third party claims, losses, damage,
lost expense, liability and settlement, including without limitation, reasonable
attorney's fees and court costs reasonably incurred by the indemnified party
(the "Indemnified Party") (collectively, "Losses") in a claim arising out of or
in connection with: (i) the intentional or negligent act or omission by the
indemnifying party (the "Indemnifying Party") in the course of the performance
of its duties and obligations hereunder;
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(ii) the material failure of the Indemnifying Party to comply with the terms and
conditions of this Agreement; (iii) any breach of any warranty, representation,
agreement or covenant of the Indemnifying Party as set forth in this Agreement;
or (iv) the failure to comply with any and all federal, state or local laws
applicable to the Indemnifying Party in the performance of its respective
obligations hereunder.
7.2 The Indemnified Party seeking indemnification shall give prompt written
notice to the Indemnifying Party, along with the request for indemnification, of
any claim for which it is seeking indemnification . The Parties understand and
further agree that an Indemnifying Party without the concurrence of the
Indemnified Party shall make no settlement of a claim. The Indemnifying Party
shall control the settlement or defense of any claim; provided, however, that
the Indemnified Party may, at its cost, engage its own attorneys. The
Indemnifying Party and Indemnified Party will fully cooperate with each other to
enable each of the parties to fulfill its obligations with respect to such
claim.
7.3 The provisions of this Section 7 shall survive the expiration or termination
of this Agreement.
8. CONFIDENTIAL INFORMATION.
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8.1 Each Party receiving any information of a business, technical, marketing or
proprietary nature (the "Receiving Party") imparted to it by the other Party
(the "Disclosing Party") during the course of this Agreement, which information
may include actual customer lists, business plans, content, designs, sketches,
materials, costs, pricing, customer lists, subject to Section 4, production
techniques, sources of supply and other documents, non-public information and
trade secrets (collectively, the "Confidential Information") that were acquired,
designed and/or developed by the Disclosing Party at great expense, acknowledges
that such Confidential Information is secret, confidential and unique, and
constitutes the trade secrets and exclusive property of the Disclosing Party,
and that any use by the Receiving Party of such Confidential Information other
than for the sole purpose of exercising its rights and fulfilling its
obligations under this Agreement would cause irreparable injury to the
Disclosing Party. For the avoidance of doubt, Confidential Information will not
include information that (i) is in or enters the public domain without breach of
this Agreement; (ii) the Receiving Party lawfully receives from a third party
without restriction on disclosure and without breach of a nondisclosure
obligation; (iii) the Receiving Party knew prior to receiving such information
from the Disclosing Party; or (iv) the Receiving Party independently develops
without reliance on any Confidential Information. Accordingly, the Receiving
Party agrees that it will not, at any time, whether during the term of this
Agreement or thereafter, disclose or divulge to any Person of, or use or suffer
the use by any other Person, any Confidential Information for any purpose other
than solely as required for the promotion and to exercise the rights or fulfill
the obligations of the Receiving Party in accordance with the terms of this
Agreement, and in no event, directly or indirectly, for its own benefit.
8.2 The Parties acknowledge that irreparable harm may result from the breach of
any covenant or agreement to be performed or observed under this Section 8, and,
whether such breach occurs before or after the termination of this Agreement,
the Parties agree that an aggrieved Party shall be entitled, in addition to any
other remedies available to such Party
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hereunder, under applicable law, or otherwise, to seek from any court of
competent jurisdiction a temporary restraining order, preliminary injunction and
permanent injunction enjoining any Party from any breach, threatened breach or
further breach of this Agreement or any present, threatened or further
infringement or impairment of the breaching Party's rights in and to the
Confidential Information.
8.3 The provisions of this Section 8 shall survive the termination of this
Agreement.
9. LIMITATION OF LIABILITY
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9.1 EXCEPT FOR LIABILITIES ARISING UNDER THE VARIOUS INDEMNITIES HEREIN
CONTAINED AND WITH THE EXCEPTION OF FRAUD OR WILLFUL MISCONDUCT, IN NO EVENT
WITH EITHER PARTY BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL
DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, CONTENT, DATA OR PROFITS, WHETHER
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, AND WHETHER OR NOT EITHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. CONTROLLING LAW; JURISDICTION.
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10.1 This Agreement shall be governed by, and construed in accordance with, the
laws of State of Texas without regard to the conflicts of law principles
thereof, regardless of the jurisdiction of creation or domicile of the parties
hereto. Any dispute arising hereunder shall be adjudicated exclusively in the
federal and state courts located in Dallas County, Texas, and the parties waive
any claims of inconvenient forum in connection therewith.
11. NOTICES.
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11.1 All notices, authorizations and requests in connection with this Agreement
shall be deemed given upon receipt when sent by air express courier, charges
prepaid, or when telecopied with receipt approval and addressed to the parties
at the addresses or telecopier number set forth above (or to such other address
or telecopier number as the Party to receive the notice or request so designates
by written notice to the other).
12. ASSIGNMENT.
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12.1 Neither Party may assign this Agreement without the prior written consent
of the other Party, and any attempt by a Party to assign this Agreement without
such consent shall be null and void; provided, however, that either Party shall
be entitled to assign this Agreement without the other party's prior written
consent in connection with: (i) a transfer or sale of the business as a going
concern by either Party; or (ii) a transfer to a wholly owned subsidiary.
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13. MISCELLANEOUS.
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13.1 WAIVER. No Waiver of any breach of any provision of this Agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of the same or
any other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
13.2 SEVERABILITY. In the event any provision of this Agreement shall be for any
reason be held to be invalid, illegal or unenforceable in any respect, the
remaining provisions shall remain in full force and effect.
13.3 COUNTERPARTS. This Agreement may be executed in multiple counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
13.4 CONSTRUCTION. In resolving any dispute or construing any provision
hereunder, there shall be no presumptions made or inferences drawn (i) because
the attorneys for one of the parties drafted the Agreement; (ii) because of the
drafting history of the Agreement; or (iii) because of the inclusion of a
provision not contained in a prior draft, or the deletion of a provision
contained in a prior draft.
13.5 FORCE MAJEURE. Neither Party shall be liable to the other or deemed to be
in default of or to have breached any provision of this Agreement as a result of
any delay, failure in performance or interruption of service, resulting directly
or indirectly from acts of God, acts of civil or military authorities, civil
disturbances, wars, strikes or other labor disputes, fires, transportation
contingencies, interruptions in telecommunications or Internet service or
network provider services, failure of equipment and/or software, laws,
regulations, acts or orders of any government or agency or official thereof,
other catastrophes or any other occurrences beyond such Party's reasonable
control.
13.6 SECTION HEADINGS. Section headings are for convenience only and are not a
part of this Agreement and should not limit or otherwise effect the
interpretation of any term of provision hereof.
13.7 RELATIONSHIP OF THE PARTIES. The Parties hereto are independent contractors
and no agency, partnership, joint venture, or employment relationship shall be
created or inferred by the existence of performance of this Agreement, and
neither Party shall have any authority to bind the other Party in any respect
whatsoever.
13.8 ENTIRE AGREEMENT. This Agreement contains the entire understanding of the
Parties hereto with respect to the transactions and matters contemplated hereby,
supersedes all previous agreements between the Parties concerning the subject
matter hereof, and cannot amended except by a writing signed by both parties. No
Party hereto has relied on any statement, representation or promise of any other
Party or of any officer, agent, employee or attorney for the other Party in
executing this agreement except as expressly stated herein.
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13.9 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is intended or
shall be construed to give any person, other than parties hereto, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
13.10 SURVIVAL. Notwithstanding termination or expiration of this Agreement, the
provisions of Sections 4, 7, 8, 9, 10 and 13 of this Agreement shall survive any
termination or expiration of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date set forth above.
XXXXXXXXXXX.XXX, INC. RICHMARK CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
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Title: Chief Executive Officer Title: President
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