Exhibit 10.5
[Material marked with an asterisk has
been omitted from this document
pursuant to a request for
confidential treatment and has been
filed separately with the Securities
and Exchange Commission.]
MARKETER AGREEMENT
This Marketer Agreement (the "Agreement") dated as of August 8th, 2006
(the "Effective Date") is between Trycera Financial, Inc. whose address is
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000 ("Client") and
New Millennium Bank, whose address is 00 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
XX 00000 ("Bank"). Each may be referred to here in as a "Party" or
collectively as "Parties".
RECITALS
(a) Bank is a member of VISA / MasterCard and is in the business of
issuing Cards and establishing Settlement Accounts for the settlement of
Card transactions.
(b) Client intends to offer Cards, issued by Bank, to consumers as
an alternative to credit cards, cash or checks.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions hereinafter set forth, the Parties hereto, intending to be
legally bound, agree as follows:
ARTICLE I - DEFINITIONS
SECTION 1.1 Definitions
Except as otherwise specifically indicated, the following terms shall
have the following meanings in this Agreement (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
(a) "Active Account" means any account that is activated and has any
activity, where any activity is defined as a fee, transaction or cardholder
initiated charge.
(b) "Business Day" means any day that is not a Saturday, Sunday,
holiday or other day on which commercial banking institutions in New Jersey
or California are authorized or obligated by law or executive order to be
closed.
(c) "Card" means a pre-paid magnetic stripe-based stored value card
issued by Bank to a Cardholder pursuant to this Agreement, used for the
purchase of goods, services and cash advances by accessing the available
balance in the Cardholder Funds through a System. Card may include stored
value cards of any type acceptable by a System.
(d) "Cardholder" means (i) a person who is issued a Card, and (ii)
uses the Card to originate a transaction.
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(e) "Cardholder Funds" means the pooled stored value account which is
associated with one or more Cards, and includes the record of debits and
credits with respect to transactions originated by each Cardholder.
(f) "Cardholder Agreement" means the agreement between Bank and a
Cardholder governing the terms and use of a Card.
(g) "Governmental Requirements" means collectively all statutes,
codes, ordinances, laws, regulations that may apply to Cards (including
Regulation E, Z, and anti-money laundering laws), rules, orders and decrees
of all governmental authorities (including without limitation federal,
state and local governments, governmental agencies and quasi-governmental
agencies).
(h) "Graphic Standards" means all standards, policies, and other
requirements adopted by a System from time to time with respect to use of
its Marks.
(i) "Interchange or Interchange Fee" means the fee paid to the issuer
of a Card by an acquiring financial institution for a transaction, as
established by a System.
(j) "Xxxx" means the service marks and trademarks of a System and
Bank, including but not limited to, the names and other distinctive marks
or logos, which identify a System and Bank.
(k) "Membership" means the membership in a System and licensing
rights thereto obtained by Bank.
(l) "Processing Services" means those services, which are necessary
to issue a Card and process a transaction in accordance with Government
Requirements and the Rules of any System and Regulatory Authority. Such
services shall include but not be limited to: set-up and maintenance of the
Card and Cardholder Funds, transaction authorization, processing, clearing
and Settlement, System access, Cardholder dispute resolution, System
compliance, regulatory compliance, security and fraud control, and activity
reporting.
(m) "Program" means any Card based system designed for Client
hereunder to provide an electronic means of providing Client's customers
with access to stored value financial transactions utilizing a Settlement
Account and a specific list of Cardholders pursuant to this Agreement.
(n) "Regulation E" means (i) the regulations, all amendments thereto
and official interpretations thereof (12 C.F.R. Part 205) issued by the
Board of Governors of the Federal Reserve System implementing Title IX
(Electronic Funds Transfer Act) of the Consumer Credit Protection Act as
amended (15 U.S.C. 1693 et. seq.), and (ii) the Electronic Funds Transfer
Act and any amendments thereto.
(o) "Regulation Z" means the regulations, all amendments thereto and
official interpretations thereof (12 C.F.R., Part 226) issued by the Board
of Governors of the Federal Reserve System.
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(p) "Regulatory Authority" means, as the context requires, the State
of New Jersey; the Federal Deposit Insurance Corporation; and any Federal
or state agency having jurisdiction over Bank or Client.
(q) "Rules" means the by-laws and operating rules of any System, the
published policies and procedures of Bank, as promulgated by Bank's Board
of Directors in good faith to ensure the continued safety and soundness of
Bank.
(r) "Settlement" means the movement and reconciliation of funds
between Bank and System members in accordance with the Rules.
(s) "Settlement Account" means the account maintained by Bank used
for Settlement of all transactions initiated by use of a Card(s) by or on
behalf of a Cardholder.
(t) "System" means MasterCard, VISA, Cirrus, Plus, and/or any other
card network system of transmitting items and Settlement thereof.
ARTICLE II - GENERAL DESCRIPTION OF PROGRAMS
SECTION 2.1 Purpose
The purpose of this Program is to offer Cards on a non-exclusive
basis, issued by Bank, as an alternative to traditional credit cards, cash
and checks. It is designed to offer consumers a convenient and secure
payment mechanism. The Cards may be used to pay for purchases, cash
advances and other expenses that are allowed by law.
ARTICLE III - DUTIES OF CLIENT
SECTION 3.1 Marketing
Client shall, from time to time, promote and market Cards to
prospective customers. Except as may be agreed by the Parties from time to
time during the term of this Agreement, each Party shall be responsible for
its own costs and expenses associated with marketing of any Card under this
Agreement. Client has no authority to use any Marks unless Bank is
appropriately identified. Bank shall have the right to approve or
disapprove any marketing materials bearing Bank's name or any Xxxx xxxxx to
distribution of such materials. Bank shall not delay or withhold its
initial review of the marketing materials unreasonably, and Bank shall
provide System's approval of marketing materials to Client within two (2)
banking days of receipt of such approval.
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SECTION 3.2 Implementation
This Agreement sets forth the general terms and conditions applicable
to all the Programs. Client will receive written approval from Bank prior
to issuing Cards under various Programs. Bank reserves the right to refuse
service to any consumer that, in its opinion, presents excessive financial
or reputation risk.
SECTION 3.3 Printing of Cards and Cardholder Agreements
All Cards and Cardholder Agreements shall identify Bank as the issuer
and include such other names and Marks as may be required to conform to
Graphic Standards, Regulatory Authority, System, and Rules. The design for
the co-branded Card and Cardholder Agreement shall be at Client's expense
(including the expense of undertaking trademark search and acquiring any
intellectual property rights in such design). Such design will be subject
to Bank's prior written approval, which approval shall not be unreasonably
withheld or delayed, and must comply with all applicable laws, regulations,
and Rules.
Cards will be distributed in custom packaging with several inserts
including but not limited to a Cardholder Agreement describing the Program
and Card use. Cards can be activated by Client or Cardholder by calling an
Interactive Voice Response Unit, Live Operator, written application, or by
accessing an approved Internet application. Alternative activation
methods may be used by Client with prior approval of the Bank, which
approval shall not unreasonable withheld. The Cardholder Agreements shall
be prepared by Bank and may be amended by Bank, from time to time, upon
notice to Client. Client shall be responsible for printing and
distributing the Cardholder Agreement and any amendments thereto to
Cardholders.
SECTION 3.4 Access to Program Documents and Information
Bank shall have access to all information and documents it reasonably
requests concerning the Client's prospects in order to issue prepaid Cards.
SECTION 3.5 Processing Services
Client shall provide for Processing Services to switch or process Card
transactions.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF CLIENT
SECTION 4.1 Representations and Warranties
Client represents and warrants to Bank as follows:
(a) This Agreement is valid, binding and enforceable against Client
in accordance with its terms.
(b) Client is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Nevada and is authorized to
do business in each state in which the nature of Client's activities makes
such authorization necessary.
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(c) Client has the full power and authority to execute and deliver
this Agreement and to perform all its obligations under this Agreement.
The provisions of this Agreement and the performance by Client of its
obligations under this Agreement are not in conflict with Client's Articles
of Incorporation, bylaws or any other agreement, contract, lease or
obligation to which Client is a party or by which it is bound.
(d) Neither Client nor any principal of Client has been subject to
the following:
(i) Criminal conviction (except minor traffic offenses and
other xxxxx offenses);
(ii) Federal or state tax lien;
(iii) Administrative or enforcement proceedings commenced by the
Securities and Exchange Commission, any state securities
regulatory authority, Federal Trade commission, federal or
state bank regulator, or any other state or federal
regulatory agency or
(iv) Restraining order, decree, injunction, or judgment in any
proceeding or lawsuit, alleging fraud or deceptive
practice on the part of Client or any principal thereof.
For purpose of this subparagraph, the word "principal" shall include any
person directly or indirectly owning ten percent (10%) or more of Client,
any officer or director of the Client or any person actively participating
in the control of Client's business.
(e) There is not pending or threatened against Client, any litigation
or proceeding, judicial, tax or administrative, the outcome of which might
materially adversely affect the continuing operations of Client. Attached
to this Agreement is a list and brief description of all pending lawsuits
in which Client is a party.
(f) Client has delivered to Bank complete and correct copies of its
balance sheets and related statements of income and cash flow. Client's
financial statements, subject to any limitation stated therein, which have
been or which hereafter will be furnished to Bank to induce it to enter
into this Agreement do or will fairly represent the financial condition of
the Client, and all other information, reports and other papers furnished
Bank will be, at the time the same are furnished, accurate and complete in
all material respects and complete insofar as completeness may be necessary
to give Bank a true and accurate knowledge of the subject matter. The
financial statements are in accordance with the books and records of Client
were prepared in accordance with generally accepted accounting principles
("GAAP") as in effect in the United States, as consistently applied, and in
accordance with all pronouncements of the Financial Accounting Standards
Board. The Bank will make available a standard financial package that it
provides its key vendors in accordance with its other practices.
(g) Client agrees that at Bank's sole discretion, Bank, its
authorized representatives, or agents and any government entity with
regulatory or supervisory authority over Bank (collectively the "Auditing
Party"), shall have the right to inspect, audit, and examine all of
Client's facilities, records and personnel relating to the Program at any
time during normal business hours upon reasonable notice. The Auditing
Party shall have the right to make abstracts from Client's books, accounts,
data, reports, papers, and computer records directly pertaining to the
subject matter of this Agreement, and Client shall make all such
facilities, records, personnel, books, accounts, data, reports, papers, and
computer records available to the Auditing Party for the purpose of
conducting such inspections and audits.
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ARTICLE V - COVENANTS OF CLIENT
SECTION 5.1 Covenants
Client covenants and agrees with Bank as follows:
(a) It will comply with all applicable laws, Government Requirements,
the Rules and any rules, orders and regulations issued by the Regulatory
Authorities that relate to the matters and transactions contemplated by
this Agreement.
(b) It will promptly give written notice to Bank of any material
adverse change in the business, properties, assets, operations or
condition, financial or otherwise, of Client and any pending, or a threat
of; litigation involving a sum of $50,000 or more and of all tax
deficiencies and other proceedings before governmental bodies or officials
affecting Client.
(c) As soon as possible, and in any event within 90 days after the
end of Client's fiscal year, commencing January 1, 2007, it will provide
Bank with its audited balance sheets and related statements of income and
cash flow and all notes and schedules thereto as of the end of such period.
(d) All written consumer complaints received by Client, relating to
the Card or its use, will be immediately reported to Bank. Such report
shall include the name and address of the complaining Cardholder, a brief
summary of the Cardholder's complaint, and when resolved a brief summary of
how the complaint was resolved. Every effort must be made to resolve
customer complaint within ten (10) Business Days.
(e) Client will not, without Bank's prior consent, solicit consumers
through the use of any party who is not directly employed by and under the
immediate supervision and control of Client and its affiliates.
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ARTICLE VI - DUTIES OF BANK
SECTION 6.1 Marketer Certification and Administrative Fees
Bank shall be responsible for any annual membership fees relating to
Bank Membership with any System.
SECTION 6.2 Memberships in System
Bank shall obtain and maintain at its sole expense a principal license
with each applicable System, and shall timely pay all fees, dues, and
assessments associated therewith. Bank shall retain its Membership in
System in good standing and shall abide in all material respects by all the
rules and regulations applicable to Bank. If a System elects to terminate
Bank's Membership for any reason, Bank shall give notice to Client as soon
after it provides notice to or receives notice from the System according to
the Rules.
SECTION 6.3 Issuer of Cards
Bank shall be the issuer of Cards and responsible for holding and
retaining the Cardholder Funds until such funds are used by Cardholders.
As issuer of the Cards, Bank is responsible for preparing and updating the
Cardholder Agreement.
SECTION 6.4 Notices
Each Party shall deliver to the other Party a copy of all material
notices or correspondence that it receives from any System, or any other
third party, relating to this Agreement, within five (5) Business Days of
receipt of such notice or correspondence.
ARTICLE VII - COMPENSATION AND EXPENSES
SECTION 7.1 Expenses of Bank
Bank shall be solely responsible for the following expenses:
Except as otherwise provided in this Agreement, all annual Membership
fees related to Bank's license with and Membership in any System utilized
by a Program, and any fees and penalties assessed by any such System or
Regulatory Authority due to Bank's actions or of any third party retained
by Bank.
Interchange revenue will be paid to Client no later than the 30th day
of each month for the prior month's interchange revenue. Interchange
revenue and System/Network Fees payable to the Bank by Client will be due
within 5 Business Days of receipt of the corresponding Interchange revenue
from the Bank.
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SECTION 7.2 Compensation Payable to Bank
Client shall pay Bank the fees defined in Schedule A.
SECTION 7.3 Compensation Payable to Client
Bank shall distribute to Client the fees as defined in Schedule A.
SECTION 7.4 Expenses of Client
Client shall pay Bank the fees for products and services set forth in
the attached Schedule A.
Client shall be solely responsible for the following:
(a) Advertising and other expenses associated with the marketing of
prepaid cards or membership plans to its consumers or prospect base or any
party under its control or any party for which it is providing services.
(b) All fines and penalties assessed by any Regulatory Authority
(other than Bank) or System due to Client's actions, inactions, or
omissions.
(c) All expenses associated with and losses from over limit
processing, cardholder or value load fraud and under floor limit
processing.
(d) A fee not to exceed $1,000 annually to Bank to offset the
expenses for conducting such inspections and audits as described in Section
4.1 (g).
(e) The Independent Sales Organization ("ISO") registration fee
(MasterCard and/or VISA, as applicable) with respect to the Program(s)
hereunder due on January 1 of every year hereafter.
(f) System transaction fees related to the Programs as described
solely in Schedule A of this Agreement.
(g) All expenses associated with establishing and maintaining any
accounts with, or receiving services from, any financial institution
providing Settlement and all expenses in providing Bank with Account
Balances.
(h) All expense associated with completing a due diligence review for
any third party relationship contemplated in this Agreement.
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[Material marked with an asterisk has
been omitted from this document
pursuant to a request for
confidential treatment and has been
filed separately with the Securities
and Exchange Commission.]
SECTION 7.5 Reserve
The Client must maintain a reserve balance in a demand deposit account
with Bank in an amount equal to ***** (**%) percent of Cardholder Funds.
In no instance shall the reserve balance be less than $********. If the
Client fails to maintain the required reserve balance set forth in this
Section 7.5 for any two (2) consecutive Business Days after prior written
notice to Client, then Bank may apply any Compensation Payable to Client,
as set forth in Section 7.3 to the reserve account until the minimum
required balance is reached. Funds in excess of the minimum balance will
be transferred to Client upon Client's request. Upon termination of this
Agreement Client agrees that it will not be entitled to the reserve account
balance for a period of ninety (90) days from the date of termination.
ARTICLE VIII - LIMITATION OF LIABILITY
SECTION 8.1 No Special Damages
Neither Party shall be liable to the other for any special, indirect,
incidental, consequential, punitive or exemplary damages, including, but
not limited to, lost profits, even if such Party has knowledge of the
possibility of such damages provided, however, that the limitations set
forth in this Section shall not apply to or in any way limit the third
party indemnity obligations under this Agreement.
SECTION 8.2 Disclaimers of Warranties
Bank specifically disclaims all warranties of any kind, express or
implied, arising out of or related to this Agreement, including without
limitation, any warranty of marketability, fitness for a particular purpose
or non-infringement, each of which is hereby excluded by agreement of the
parties.
SECTION 8.3 Liabilities of Client for System and Regulatory Claims
Client shall be liable to Bank for any and all liabilities and every
loss, claim, demand, and cause of action (including, without limitation,
the cost of investigating the claim, the cost of litigation and reasonable
attorneys' fees, whether or not legal proceedings are instituted and
whether paid or incurred, as the case may be) by or on behalf of any
Cardholder as a result of Client's failure to comply with the Rules, System
or applicable Regulatory Authority.
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ARTICLE IX - TERM OF PROGRAMS AND AGREEMENT
SECTION 9.1 Term and Termination of Agreement Without Cause
The term of this Agreement shall commence on the Effective Date and
continue for three (3) years (the "Initial Term") unless terminated earlier
as provided below. After the Initial Term, the Agreement shall
automatically extend for additional periods of one year each (a "Renewal
Term"). During a Renewal Term, either party may terminate this Agreement
for any reason by providing written notice to the other at least 120 days
in advance of termination or as provided below.
SECTION 9.2 Termination of Agreement For Cause
(a) Either Bank or Client shall have the right to terminate this
Agreement upon occurrence of one or more of the following events:
(i) Failure by the other party to observe or perform, in any
material respect, that party's obligations to the other party
hereunder, so long as the failure is not due to the actions or failure
to act of the terminating party, but only if the failure continues for
a period of (A) thirty (30) days after the non-performing party
receives written notice from the other party specifying the failure in
the case of a failure not involving the payment of money, or (B) ten
(10) days after the non-performing party receives written notice from
the other party specifying the failure in the case of a failure to pay
any amount then due hereunder; provided, however, that Bank, in its
sole discretion, may terminate this Agreement without such a cure
period if a substantially similar material failure has previously
occurred;
(ii) In the event any financial statement, representation,
warranty, statement or certificate furnished to it by the other party
in connection with or arising out of this Agreement is materially
adverse to the terminating party or intentionally untrue as of the
date made or delivered.
(iii) The other party (A) voluntarily commencing any
proceeding or filing any petition seeking relief under Title 11 of the
United States Code or any other Federal, state or foreign bankruptcy,
insolvency, liquidation or similar law, (B) applying for or consenting
to the appointment of a receiver, trustee, custodian, sequestrator or
similar official for such party or for a substantial part of its
property or assets, (C) making a general assignment for the benefit of
creditors, or (D) taking corporate action for the purpose of effecting
any of the foregoing; or
[Material marked with an asterisk has
been omitted from this document
pursuant to a request for
confidential treatment and has been
filed separately with the Securities
and Exchange Commission.]
(iv) The commencement of an involuntary proceeding or the filing
of an involuntary proceeding or the filing of an involuntary petition
in a court of competent jurisdiction seeking (A) relief in respect of
the other party, or of a substantial part of its property or assets
under Title 11 of the United States Code or any other Federal, state
or foreign bankruptcy, insolvency, receivership or similar law, (B)
the appointment of a receiver, trustee, custodian, sequestrator or
similar office for the other party or for a substantial part of its
property or assets, or (C) the winding up or liquidation, of the other
party, if such proceeding or petition shall continue un-dismissed for
sixty (60) days or an order or decree approving or ordering any of the
foregoing shall continue unstayed and in effect for sixty (60) days.
(v) Upon any change to or enactment of or change in
interpretation or enforcement of any law or regulation which would
have a material adverse effect upon such Party's ability to perform
its obligations or such Party's costs/revenues with respect to the
Program.
(vi) Violation by either Party of any federal or applicable state
law relating to the performance of this Agreement.
(vii) Upon direction from any Regulatory Authority or System to
cease or materially limit performance of the obligations under this
Agreement.
SECTION 9.3 Survivals of Payments and Survival of Obligations Upon
Termination of Agreement
In the event of a termination hereunder, this Agreement shall continue
in full force and Bank shall continue to provide the services currently
then being provided until such time as all Cards are so canceled in
accordance with the Cardholder Agreement, but in no event exceeding
********************* days from notice of cancellation. If such
termination is made by Bank pursuant to Section 9.2, Bank will be entitled
to withhold and pay directly all Program expenses from Program revenues
including the costs of servicing the existing Cardholders by a servicing
organization reasonably selected by Bank. In such event, Bank shall have
no further obligation to accept any Cardholder Funds from Client. During
any termination, the Parties will cooperate to ensure a smooth and orderly
wind-down of the Program. In no event will any Party make any public
statement or customer communication regarding the wind-down without the
express prior written approval of Bank, which approval shall not be
unreasonably withheld or delayed.
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ARTICLE X - CONFIDENTIALITY
SECTION 10.1 Confidential Information
The term "Confidential Information" shall mean this Agreement and all
proprietary information, data, trade secrets, business information and
other information of any kind whatsoever which (a) a Party ("Discloser")
discloses, in writing, orally or visually, to the other Party ("Recipient")
or to which Recipient obtains access in connection with the negotiation and
performance of this Agreement, and which (b) relates to (i) the Discloser,
(ii) in the case of Client, Bank and its customers and or associates, or
(iii) consumers who have made confidential or proprietary information
available to Client. The definition of Confidential Information shall
include Customer Information as described below.
SECTION 10.2 Customer Information
Client acknowledges that Bank has a responsibility to its customers to
keep information about its customers and their accounts strictly
confidential and Bank acknowledges that Client has a responsibility to its
consumers to keep their information strictly confidential (collectively,
"Customer Information"). In addition to the other requirements set forth
in this Section regarding Confidential Information, Customer Information
shall also be subject to the additional restrictions set forth in this
Subsection. The party that receives Customer Information the other (the
"Recipient") shall not disclose or use such Customer Information other than
to carry out the purposes for which the party that has provided the
Customer Information (the "Discloser") or one of its affiliates disclosed
such Customer Information to Recipient. Recipient shall not disclose any
Customer Information other than on a "need to know" basis and then only to:
(a) affiliates of Discloser; (b) its employees or officers; (c) affiliates
of Recipient provided that such affiliates shall be restricted in use and
redisclosure of the Customer Information to the same extent as Recipient;
(d) to carefully selected subcontractors provided that such subcontractors
shall have entered into a confidentiality agreement no less restrictive
than the terms hereof; (e) to independent contractors, agents, and
consultants hired or engaged by Recipient, provided that all such persons
are subject to a confidentiality agreement which shall be no less
restrictive than the provisions of this Section; or (f) pursuant to the
exceptions set forth in 15 USC 6802(e) and accompanying regulations which
disclosures are made in the ordinary course of business. The restrictions
set forth herein shall apply during the term and after the termination of
this Agreement. For the purposes of this Section, Cardholders shall be
considered customers of Bank.
Notwithstanding the above, Client, at its sole cost and expense, may
use the Customer Information and include in statement and correspondence
sent to Cardholders materials designed to solicit Cardholders for the
purchase of products and services, and shall be entitled to receive any
revenue associated with any such solicitation that does not otherwise flow
through the Cardholder Cards. Without the prior written consent of Client,
Bank will not use any Cardholder Information, in whole or in part, to
solicit Cardholders for any other product or for any other purpose.
12
Each Party must comply with all federal and state privacy laws.
SECTION 10.3 Disclosure to Employees and Agents.
Each of the Parties, as Recipient, hereby agrees on behalf of itself
and its employees, officers, affiliates and subcontractors that
Confidential Information will not be disclosed or made available to any
person for any reason whatsoever, other than on a "need to know basis" and
then only to: (a) its employees and officers; (b) subcontractors and other
third-parties specifically permitted under this Agreement, provided that
all such persons are subject to a confidentiality agreement which shall be
no less restrictive than the provisions of this Section; (c) independent
contractors, agents, and consultants hired or engaged by Recipient,
provided that all such persons are subject to a confidentiality agreement
which shall be no less restrictive than the provisions of this Section; and
(d) as required by law or as otherwise permitted by this Agreement, either
during the term of this Agreement or after the termination of this
Agreement. Prior to any disclosure of Confidential Information as required
by law, the Recipient shall (i) notify the Discloser of any, actual or
threatened legal compulsion of disclosure, and any actual legal obligation
of disclosure immediately upon becoming so obligated, and (ii) cooperate
with the Discloser's reasonable, lawful efforts to resist, limit or delay
disclosure. Nothing in this Section shall require any notice or other
action by Bank in connection with requests or demands for Confidential
Information from bank examiners or for compliance purposes.
SECTION 10.4 Loss of Confidential or Customer Information
In the event of any disclosure or loss of, or inability to account
for, any Confidential Information of the furnishing party, the receiving
party shall promptly, at its own expense: (i) notify the furnishing party
in writing, (ii) take such actions as may be necessary or reasonably
requested by the furnishing party to minimize the violation; and (iii)
cooperate in all reasonable respects with the furnishing party to minimize
the violation and any damage resulting therefrom. Client shall fully
disclose to Bank breaches of Client's security resulting in unauthorized
intrusions into the Client's records that may materially adversely affect
the Bank or its Customers. Client shall report to Bank within five (5)
Business Days following the date on which any material intrusion occurs,
the effect on Bank of such intrusion, and the corrective action to be taken
by Client to respond to the intrusion.
SECTION 10.5 Return of Materials
Upon the termination or expiration of this Agreement, or at any time
upon the request of a Party, the other Party shall return or destroy all
Confidential Information, including Customer Information, in the possession
of such Party or in the possession of any third Party over which such Party
has or may exercise control. If destroyed, such destruction of
Confidential Information shall be designated by a certificate executed by
an officer of the Party which was responsible for such destruction.
SECTION 10.6 Exceptions
With the exception of the obligations related to Customer Information,
the obligations of confidentiality in this Section shall not apply to any
information which a Party rightfully has in its possession when disclosed
to it by the other Party, information which a party independently develops,
information which is or becomes known to the public other than by breach of
this Section or information rightfully received by a party from a third
party without the obligation of confidentiality.
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SECTION 10.7 Media Releases
All media releases, public announcements and public disclosures by
either Party, or their representatives, employees or agents, relating to
this Agreement or the name or logo of Bank or Client, any Bank or Client
affiliate or supplier, including, without limitation, promotional or
marketing material, but not including any disclosure required by legal,
accounting or regulatory requirements beyond the reasonable control of the
releasing Party, shall be coordinated with and approved by the other Party
in writing prior to the release thereof.
ARTICLE XI - INSURANCE
SECTION 11.1 Insurance
Client shall maintain, throughout the term of this Agreement,
appropriate comprehensive general liability (which shall include
contractual liability) and employee theft and dishonesty insurance
policies, the limit of which shall be no less than a combined single limit
of $1,000,000 per occurrence for bodily injury and property damage.
ARTICLE XII - GENERAL PROVISIONS
SECTION 12.1 Indemnification
(a) Client covenants and agrees to indemnify and hold harmless Bank,
its parent, subsidiaries or affiliates, and their respective officers,
directors, employees and permitted assigns, as such, against any direct
losses or expenses arising from any legal action, claim, demand or
proceedings brought against any of them as a result of any
misrepresentation, breach of warranty or failure to fulfill a covenant of
this Agreement on the part of Client , any act or omission of Client or
its providers which violates any law, by-laws or Governmental Requirements,
or any claim relating to obligations owed to or by Client or any third
party retained by it; provided, that this provision shall not apply if such
claim arises out of (i) an act of fraud, embezzlement or criminal activity
by Bank, (ii) negligence, willful misconduct or bad faith by Bank, or (iii)
the failure of Bank to comply with, or to perform its obligations under,
this Agreement
(b) Bank covenants and agrees to indemnify and hold harmless Client
and its parent, subsidiaries or affiliates, and their respective officers,
directors, employees, and permitted assigns, as such, against any direct,
losses or expenses arising from any legal action, claim, demand, or
proceedings brought against any of them as a result of any
misrepresentation, breach of warranty or failure to fulfill a covenant of
this Agreement on the part of Bank, any act or omission of Bank or its
providers which violates any law, by-laws or Governmental Requirements, or
any claim relating to obligations owed to or by Bank or any third party
retained by it (except to the extent that Client has agreed to fulfill such
obligation under this Agreement); provided, that this provision shall not
apply if such claim arises out of (i) an act of fraud, embezzlement or
criminal activity by Client or its representatives, (ii) negligence,
willful misconduct or bad faith by Client or its representatives, or (iii)
the failure of Client or its representatives to comply with, or to perform
its obligations under, this Agreement.
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(c) If any claim or demand is asserted against any Party or Parties
(individually or collectively, the "Indemnified Party") by any person who
is not a party to this Agreement in respect of which the Indemnified Party
may be entitled to indemnification under the provisions of subsections (a)
or (b) above, written notice of such claim or demand shall promptly be
given to any Party or Parties (individually or collectively, the
"Indemnifying Party") from whom indemnification may be sought. The
Indemnifying Party shall have the right, by notifying the Indemnified Party
within ten (10) days of its receipt of the notice of the claim or demand,
to assume the entire control (subject to the right of the Indemnified Party
to Participate at the Indemnified Party's expense and with counsel of the
Indemnified Party's choice) of the defense, compromise or settlement of the
matter, including, at the Indemnifying Party's expense, employment of
counsel of the Indemnifying Party's choice. If the Indemnifying Party
gives notice to any Indemnified Party that the Indemnifying Party will
assume control of the defense, compromise or settlement of the matter the
Indemnifying Party will be deemed to have waived all defenses to the claims
for indemnification by the Indemnified Party with respect to that matter.
Any damages to the assets or business of the Indemnified Party caused by a
failure of the Indemnifying Party to defend, compromise or settle a claim
or demand in a reasonable and expeditious manner, after the indemnifying
Party has given notice that it will assume control of the defense,
compromise or settlement of the matter, shall be included in the damages
for which the Indemnifying Party shall be obligated to indemnify the
Indemnified Party.
(d) The provisions of this Section 12.1 and of Section 12.2 shall
survive termination or expiration of this Agreement.
SECTION 12.2 Disclosure
(a) Each Party shall promptly notify the other of any action, suit,
proceeding, facts and circumstances, and the threat of reasonable prospect
of same, which might give rise to any indemnification hereunder or which
might materially and adversely affect either Party's ability to perform
this Agreement.
(b) Each Party represents and warrants to the other that it has no
knowledge of any pending or threatened suit, action, arbitration or other
proceedings of a legal, administrative or regulatory nature, or any
governmental investigation, against it or any of its affiliates or any
officer, director, or employee which has not been previously disclosed in
writing and which would materially and adversely affect its financial
condition, or its ability to perform this Agreement.
SECTION 12.3 Legal Compliance
Each party represents and warrants to the other that it is familiar
with the requirements of all applicable consumer protection laws applicable
to it which relate to the Program and its obligations hereunder, and agrees
that it will comply, in all material respects, with all such laws and
regulations and all other applicable laws and regulations relating to its
activities under this Agreement, now and in the future.
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SECTION 12.4 Relationship of Parties
Bank and Client agree they are independent contractors to each other
in performing their respective obligations hereunder. Nothing in this
Agreement or in the working relationship being established and developed
hereunder shall be deemed, nor shall it cause, Bank and Client to be
treated as partners, joint ventures, or otherwise as joint associates for
profit.
SECTION 12.5 Regulatory Examinations and Financial Information
Client agrees to submit to any examination which may be required by
any Regulatory Authority or System with audit and examination authority
over Bank, to the fullest extent of such Regulatory Authority or System.
Client shall also provide to Bank any information, which may be required by
any Regulatory Authority or System in connection with their audit or review
of Bank or the Program and shall reasonably cooperate with such Regulatory
Authority or System in connection with any audit or review of Bank. Client
shall furnish Bank, at Client expense, with audited financial statements
prepared by a certified public accountant. Client shall also provide such
other information as Bank, Regulatory Authorities, or the System may from
time to time reasonably request with respect to the financial condition of
Client and such other information as Bank may from time to time reasonably
request with respect to third parties contracted with Client.
SECTION 12.6 Governing Law
The Parties acknowledge that Bank, as a state chartered commercial
bank, is regulated by the State of New Jersey Department of Banking and
Insurance (NJDOBI), and is therefore subject to state law, and entitled no
preemption from federal laws. This Agreement shall be governed by the
internal laws, and not by the laws regarding conflicts of laws, of the
State of New Jersey. Each Party hereby submits to the jurisdiction of the
courts of such state, and (subject to the Bank's reservation of preemption
rights above) waives any objection to venue with respect to actions brought
in such courts.
SECTION 12.7 Severability
In the event that any part of this Agreement is deemed by a court,
Regulatory Authority, System, or other public or private tribunal of
competent jurisdiction to be invalid or unenforceable, such provision shall
be deemed to have been omitted from this Agreement. The remainder of this
Agreement shall remain in full force and effect, and shall be modified to
any extent necessary to give such force and effect to the remaining
provisions, but only to such extent.
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SECTION 12.8 Survival
All representations and warranties herein shall survive any
termination or expiration of this Agreement.
SECTION 12.9 Successors and Third Parties
Except as limited by Section 12.10, this Agreement and the rights and
obligations hereunder shall bind, and inure to the benefit of the Parties
and their successors and permitted assigns.
SECTION 12.10 Assignments
The rights and obligations of Client under this Agreement are personal
and may not be assigned either voluntarily or by operation of law, without
prior written consent from Bank.
SECTION 12.11 Notices
All notices, requests and approvals required by this Agreement shall
be in writing addressed/directed to the other Party at the address and
facsimile set forth below, or at such other address of which the notifying
Party hereafter receives notice in conformity with this section. All such
notices, requests, and approvals shall be deemed given upon the earlier of
receipt of facsimile transmission during the normal Business Day or actual
receipt thereof. All such notices, requests and approvals shall be
addressed to the attention of:
Bank to: New Millennium Bank
00 Xxxxxxxxxx Xxx.
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Van Der Stad
Facsimile Number: (000) 000-0000
Client to: Trycera Financial, Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile Number: 000-000-0000
SECTION 12.12 Waivers
Neither Party shall be deemed to have waived any of its rights, power,
or remedies hereunder except in writing signed by an authorized agent or
representative of the Party to be charged. Either Party may, by an
instrument in writing, waive compliance by the other Party with any term or
provision of this Agreement on the part of the other Party to be performed
or complied with. The waiver by either Party of a breach of any term or
provision of this Agreement shall not be construed as a waiver of any
subsequent breach.
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SECTION 12.13 Entire Agreement; Amendments
This Agreement constitutes the entire Agreement between the Parties
and supersedes all prior agreements, understandings, and arrangements, oral
or written, between the Parties with respect to the subject matter hereof.
This Agreement may not be modified or amended except by an instrument or
instruments in writing signed by the Party against whom enforcement of any
such modification or amendment is sought.
SECTION 12.14 Counterparts
This Agreement may be executed and delivered by the Parties in
counterpart, each of which shall be deemed an original and both of which
together shall constitute one and the same instrument.
SECTION 12.15 Disputes
(a) Duty to Notify. In the event of any dispute, controversy, or
claim arising out of or relating to this Agreement or the construction,
interpretation, performance, breach, termination, enforceability or
validity thereof (hereinafter, a "Dispute"), the Party raising such Dispute
shall notify the other promptly and no later than sixty (60) days from the
date of its discovery of the Dispute. In the case of a Dispute relating to
account or transaction statements or similar matter, the failure of a party
to notify the other party of such Dispute within sixty (60) days from the
date of its receipt shall result in such matter being deemed undisputed and
accepted by the party attempting to raise such Dispute.
(b) Cooperation to Resolve Disputes. The Parties shall cooperate and
attempt in good faith to resolve any Dispute promptly by negotiating
between persons who have authority to settle the Dispute and who are at a
higher level of management than the persons with direct responsibility for
administration and performance of the provisions or obligations of this
Agreement that are the subject of the Dispute.
(c) Arbitration. Any Dispute which cannot otherwise be resolved as
provided in paragraph (b) above shall be resolved by arbitration conducted
in accordance with the commercial arbitration rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitral tribunal may be entered in any court having jurisdiction thereof.
The arbitration tribunal shall consist of a single arbitrator mutually
agreed upon by the Parties, or in the absence of such agreement within 30
days from the first referral of the Dispute to the American Arbitration
Association, designated by the American Arbitration Association. The place
of arbitration shall be New Brunswick, New Jersey, unless the Parties shall
have agreed to another location within 15 days from the first referral of
the Dispute to the American Arbitration Association. The arbitral award
shall be final and binding. The Parties waive any right to appeal the
arbitral award, to the extent a right to appeal may be lawfully waived.
Each Party retains the right to seek judicial assistance: (i) to compel
arbitration, (ii) to obtain interim measures of protection prior to or
pending arbitration, (iii) to seek injunctive relief in the courts of any
jurisdiction as may be necessary and appropriate to protect the
unauthorized disclosure of its proprietary or confidential information, and
(iv) to enforce any decision of the arbitrator, including the final award.
In no event shall either Party be entitled to punitive, exemplary or
similar damages.
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(d) Confidentiality of Proceedings. The arbitration proceedings
contemplated by this Section shall be as confidential and private as
permitted by law. To that end, the Parties shall not disclose the
existence, content or results of any proceedings conducted in accordance
with this Section, and materials submitted in connection with such
proceedings shall not be admissible in any other proceeding, provided,
however, that this confidentiality provision shall not prevent a petition
to vacate or enforce an arbitral award, and shall not bar disclosures
required by any laws or regulations.
SECTION 12.16 Limitation of Liability
Neither Client, the Bank nor any of their respective directors,
officers, employees, agents, representatives or controlling persons shall
be liable for any action taken or for refraining from taking any action in
good faith pursuant to this Agreement; provided, however, that this
provision shall not protect Client or Bank against any breach of their
respective representations, warranties or covenants made herein, or against
any specific liability imposed pursuant hereto, or against any liability
which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of
reckless disregard of obligations or duties hereunder. Client and Bank may
rely in good faith on any document, electronic file or other electronic or
telephonic communication of any kind, which appears bona fide, submitted by
any appropriate person respecting any matters arising hereunder.
SECTION 12.17 Non-Solicitation of Employees
The Parties agree that during the term of this Agreement each Party
will not seek out or induce any person (by offering employment or
otherwise) who is an employee of the other Party to terminate their
employment.
SECTION 12.18 Headings
The table of contents, various captions and section headings in this
Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References
in this Agreement to any Section are to such Section of this Agreement. To
the extent possible, each provision of this Agreement shall be interpreted
in such a manner as to be effective and valid under applicable law, but if
any provision of this Agreement shall be held to be invalid, illegal, or
unenforceable, such provision shall be ineffective only to the extent of
such invalidity, illegality, or unenforceability, without rendering
invalid, illegal, or unenforceable the remainder of such provision or the
remaining provisions of this Agreement.
Signature page to follow
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IN WITNESS WHEREOF, this Agreement is executed by the Parties' authorized
officers or representatives and shall be effective as of the date first
above written.
Trycera Financial, Inc. New Millennium Bank
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx Van Der Stad
Name: Xxxxxxx Xxxxxx Name: Xxxxx Van Der Stad
Title: President Title: President & Chief Executive Officer
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[Material marked with an asterisk has
been omitted from this document
pursuant to a request for
confidential treatment and has been
filed separately with the Securities
and Exchange Commission.]
Schedule A
Marketer Pricing for Prepaid Card Sponsorship
Client will keep all of interchange based on the Monthly gross dollar
volume (GDV) for signature-based transactions and, alternatively,
transaction fees for PIN-based or ATM transactions. The Bank retains the
float and interest on deposits held at the bank.
Client and Bank agree to the following streamlined price schedule. For the
term of the Agreement any Active Account, whereas Active Account is defined
in Section 1.1 of the Agreement, the following pricing shall apply:
Number of Active Accounts Monthly Price Per Active Account
------------------------- --------------------------------
From 0 to 149,999 $*****
From 150,000 to 499,999 $*****
500,000 or more $*****
Schedule for Compensation
Interchange - Bank shall distribute to Client the monthly Interchange as
outlined above no later than ***** Business Days from date the appropriate
reports are received by Bank from the processor.
Network and System Fees Bank shall invoice Client on the ***** for all
network and system fees resulting from the specified Client portfolio(s)
and Client shall pay such invoice on the ***** of each month for the
preceding month.
Cardholder Fees Distributed to Client daily.
Additional Fees
FEE DESCRIPTION AMOUNT
---------------------------------------------------------------------------
BIN (as required) $*****
System and Network Fees Pass through at cost
Hourly Professional Services Fee $****/hour
-- Billed in quarter-hour increments with a one-hour minimum
-- Estimates provided upon request
-- Fee applies to work associated with but not limited to:
- ICA or BIN paperwork and implementation
- Program applications and submission
- Graphic design
- Review of collateral and website material
- Processor set-up
- Consulting
- Client support
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