CONFIDENTIALITY AND MARKETING AGREEMENT
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THIS CONFIDENTIALITY AND MARKETING AGREEMENT (this" Agreement") is entered into
by Home Inc. ("HOME"), a Delaware Corporation, of 6774 South 1300 East, Salt
Lake City, UT, and ePenzio, Inc. ("EPENZIO"), a Utah Corporation, of 0000 Xxxx
Xxxxxxxxxx Xxxxxxx, Xxxxx #000, Xxxx Xxxx Xxxx, XX, 00000, Xxxx Xxxxxxxx
("Xxxxxxxx") 0000 Xxxxx Xxxx, Xxxxxx, XX, 00000, Xxxx Xxxxxxxx ("Xxxxxxxx"),
of 0000 Xxxx Xxxxx Xx, Xxxxx, XX 00000, Xxxxx Xxxxxxxx ("Xxxxx"), of H.O.M.E.,
Inc. effective July 21, 2000.
RECITALS
A. HOME and EPENZIO are interested in jointly marketing certain products
and services of EPENZIO (the "Joint Marketing Project").
B. In connection with the joint marketing effort, HOME and EPENZIO shall
have access to certain trade secrets and confidential and proprietary
information of each other.
C. HOME, Xxxxx (President and Chief Executive Officer of HOME), EPENZIO,
Xxxxxxxx (President of EPENZIO) and Xxxxxxxx (Chief Executive Officer
of EPENZIO) desire to preserve and protect such confidential and
proprietary information.
D. To that end, HOME, Xxxxx, EPENZIO, Xxxxxxxx and Xxxxxxxx agree as
follows:
AGREEMENT
1. Rights and Obligations
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EPENZIO shall provide the following:
A. Fulfillment services, including staffing, management, and
processing for all credit card merchant accounts offered and sold
by HOME, and POS products, POS Equipment virtual terminal,
software, merchant services and software solutions ("EPENZIO
Products") for HOME to market to businesses, proprietors,
entrepreneurs, and other potential or existing HOME clients,
customers and/or merchants.
B. Leasing of EPENZIO Products, lease funding (which may be through a
subcontractor), and disbursement of such lease proceeds. EPENZIO
shall further take all steps necessary to ensure that EPENZIO
delivers to HOME's vendor(s) 1) an approval code and merchant
account identification number from EPENZIO or its subcontractor
merchant account company, and 2) written verification of lease
approval for each HOME client, customer and/or merchant.
C. Merchant account application processing. EPENZIO or its
subcontractor will accept for processing, properly prepared
applications, agreements and purchase orders submitted for EPENZIO
products from HOME. EPENZIO will further ensure that all steps
reasonably necessary will be taken, including completion of any
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necessary paperwork and other administrative requirements, to
insure funding for each sale or lease of a merchant account to
HOME clients, customers and/or merchants.
D. EPENZIO will supply, at no cost, marketing materials for EPENZIO
Products. All such marketing materials or materials bearing
EPENZIO's trademarks or logos shall be used by HOME only for the
purpose of promoting EPENZIO Products, and only after EPENZIO's
prior approval.
2. Referral Fees.
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A. HOME will furnish EPENZIO with leads of HOME's customers for the
sole purpose of EPENZIO contacting those customers to sell them
Credit Card Processing equipment, including but not limited to
Hardware terminals, Processing software and Virtual Terminals, and
assist those customers in obtaining a Merchant Account. Most of
these contacts will be made at seminar events that are sponsored
and paid for by HOME. EPENZIO will pay referral fees to HOME for
only those referrals that purchase or lease this Credit Card
processing equipment from EPENZIO. EPENZIO will pay HOME referral
fees according to the following schedule:
i. EPENZIO will advance HOME $50,000 in the form of an
"Advanced Marketing Payment " for each seminar event that
is scheduled for the following week. This payment will be
made by no later than the Wednesday of the week before the
seminar event. HOME shall only use the Advance Marketing
Payment paid by EPENZIO for advertising and promotion of
HOME seminars and business sessions where EPENZIO products
and services will be sold. The Advanced " Marketing Payment
will be deemed an as an advance towards Earned Funding as
further described below.
ii. Should, through an Act of God, a scheduled seminar or
business session be cancelled, EPENZIO will only recover
50% of the Advance Marketing Payment paid for that seminar
.Should such cancellation occur more than one-time in a
calendar year, EPENZIO will be allowed to recover the full
amount of the Advance Marketing Payment for that seminar.
In either event, EPENZIO will deduct a maximum of $10,000
per week from the following weeks Advance Marketing Payment
until these amounts are recovered.
iii. On the first Wednesday, at least 60 days after the last day
of each seminar event, EPENZIO will prepare an Earned
Funding Settlement (the Settlement) statement for each
seminar event. The Settlement will be calculated for each
seminar as follows:
1. EPENZIO will figure the Earned Funding for HOME based
on 62% of the applications that were NOT cancelled by
HOME'S customers within the customer's 3-day "Right
of Cancellation" period.
2. The applications will be paid at the rate of$1375 for
every $89.95 lease and $1135 for every $79.95 lease.
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The percentages of referral fees for $89.95 and
$79.95 leases for the Settlement will be the same as
the percentages for the actual $89.95 and $79.95
funding for this same seminar.
3. For Example: HOME has a seminar where they accept 100
merchant account applications from its customers. Of
these lOO applications, the customers cancel 30 of
the applications within their 3-day Right of
Cancellation period. At the 60-day Settlement date,
43 applications (70 applications X 62% = 43.4) will
be settled. If EPENZIO obtains actual funding on 50
applications -15 at $89.95 (30%) and 35 at $79.95
(70%) -the Earned Funding Settlement amount will be
figured as follows:
43 X 30% = 13 X $1375 = $17,875
Plus
43 X 70% = 30 X $1135 = $34,050
Total Earned Funding = $51,925
4. In connection with the Earned Funding Settlement, the
Advanced Marketing Payment will be credited towards
the Earned Funding due to HOME. If the Earned Funding
owing for a particular seminar exceeds the Advanced
Marketing Costs actually paid in advance by EPENZIO
for that seminar, will be paid to HOME in addition to
the next Advanced Marketing Payment-or, if there is
no Advanced Marketing Payment in the following thirty
days, the remaining Earned Funding will be paid
within thirty (30) days of Settlement. If there is a
deficit of Earned Funding, meaning that the Earned
Funding for a particular seminar is less than the
Advanced Marketing Payment previously made by EPENZIO
for that same seminar, the difference will be
deducted from the next week's Advanced Marketing
Payment made by EPENZIO to HOME. If no Advanced
Marketing Payment is made the next thirty days, then
HOME will pay the difference to EPENZIO within thirty
(30) days of Settlement. If HOME's Earned Funding for
a seminar exceeds the Advanced Marketing Payment for
that seminar by more than 10% for 2 weeks running,
then the next Advanced Marketing Payment will be
increased to the nearest $5,000 increment based on
the average of the Earned Funding for the previous 2
weeks. Likewise, if HOME's Earned Fundings for a
seminar are less that the Advanced Marketing Payments
for that seminar by more than 10% for 2 weeks
running, then the Advanced Marketing Payment will be
decreased to the nearest $5000 increment based on the
average of the Earned Funding for the previous 2
weeks.
5. EPENZIO will pay to HOME additional referral fees
that HOME agrees will only be used to pay HOME's road
crew. These referral fees will be paid at the rate
of$30 for every substantially complete (all forms are
complete and signed), non-cancelled application that
is submitted by HOME to EPENZIO. These payments will
be made separately no later than the Wednesday two
weeks following the seminar. The number of
substantially complete files will be verified by
EPENZIO's seminar representative and reported to
HOME's road crew at the end of each seminar event.
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6. The following exceptions apply to the above
referenced pay schedule:
a. For the seminar weeks of May 22nd through
June 29th, EPENZIO provided an advance
Marketing Payment of $40,000 per team per
week.
b. For the seminar weeks of July 5th through
July 21 st, EPENZIO provided an Advance
Marketing payment of $60,000 per team per
week.
c. For the seminar weeks of May 22nd through
June 29th, HOME's Earned Funding will be
figured at the rate of$1135 for $79.95
applications and $760 for $59.95
applications, based on actual funding, not a
percentage of applications.
d. For the seminar weeks of May 22nd through
July 13th, the percentage of reserve funds
that will be credited to HOME will be 66%
instead of 45%.
e. For the seminar weeks of May 22nd through
July 13,th EPENZIO will make road crew
referral payments at the rate of $20 for
every complete application and $10 for every
incomplete application.
f. For the seminar weeks of April17th through
May 19th, all of the reserve that has been
withheld will belong to EPENZIO.
g. The seminar weeks of May 22nd through June
8th have already been settled and adjusted
for as of the date this agreement was signed.
If an exception is not specifically listed above;
all of the terms of this agreement apply.
B. At the end of this Joint Marketing Agreement, a final Settlement
statement will be prepared 60 days following the last seminar.
This Statement will reconcile all Advanced Marketing Payments and
Earned Funding for every seminar or business session that HOME has
sponsored and paid for. At this time, it will be determined if
there is an excess or deficit in the Earned Funding for all
seminars. If there is a deficit of Earned Funding, HOME will pay
this deficit amount to EPENZIO within 30 days. If HOME fails to
pay within this 30-day period, Xxxxx agrees to pay the unrecovered
Earned Funding to EPENZIO within thirty days of written
notification from EPENZIO. If there is an excess of Earned
Funding, EPENZIO will pay this excess to HOME within 30 days,
EXCEPT, in the event that HOME does not fully comply with all of
the material terms of this agreement in ending this Joint
Marketing Agreement, EPENZIO may elect to withhold the excess
Earned Funding to cover any reasonable costs involved, so long as
EPENZIO gives written notice to HOME of any failure to comply with
the terms of the Agreement, identifying with specificity any such
failures and the resulting costs to EPENZIO, and if such failures
are capable of cure, HOME has an opportunity to cure. If EPENZIO
fails to pay within this thirty-day period, Xxxxxxxx and Xxxxxxxx
agree to pay the excess Earned Funding to HOME within thirty (30)
days of written notification from HOME. Likewise, if EPENZIO has
not complied with all material terms of this agreement, HOME may
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withhold any Earned Funding deficit to cover any reasonable costs
that it has incurred, on the same terms that EPENZIO may withhold
payments as described in this paragraph.- This will not limit any
other damages that the parties-may be entitled to. EPENZIO may
consider that HOME has "ended" this Joint Marketing Agreement if
HOME has less than 20 approved applications from its seminars in
any given calendar month.
C. Upon request, EPENZIO will provide HOME with any and all current
information on factors and reserve amounts used by LeaseComm to
determine payouts on leases submitted by HOME. EPENZIO and HOME
agree to be bound by whatever terms Leasecomm imposes on the
funding for the leases for HOME's customers. Leasecomm currently
has imposed a 13% reserve to be held from gross funding amounts
for all leases that Leasecomm approves for HOME's customers. Both
parties agree that EPENZIO will set aside and credit 45% of these
reserve funds to HOME to cover chargebacks (see section 4b).
Leasecomm currently is scheduled to hold these funds in a
non-interest bearing reserve account for 6 months.
D. These referral fees are based on HOME providing an e-commerce
enabled web site and shopping cart/online order form that are
compatible with EPENZIO's online transaction processing system.
EPENZIO's leasing company requires that the web site and shopping
cart/online order form be provided as part of the terms of the
lease. If it becomes necessary for EPENZIO to supply the web site
and shopping cart/online order form, these referral fees will be
reduced to reflect these costs.
E. ECS shall retain payment for any HOME referrals sold through the
ECS affiliate site. ECS shall be solely responsible for all
referral commissions paid to customers signing up through the ECS
affiliate site or approaching ECS directly. In the event that HOME
should establish its own referral program, HOME shall be paid
according to the commission schedule in paragraph 3e in this
agreement as long as completed lease applications are delivered to
ECS. HOME shall be solely responsible for all referral commissions
paid to customers signing up through the HOME affiliate site.
F. EPENZIO has several different processing solutions available for
HOME to sell to its clients, as well as lease terms of 12,24,36
and 48 months. Pricing and referral fees will vary depending upon
the options and lease terms chosen. EPENZIO will provide price
quotes to HOME utilizing any combination of processing solutions
and lease terms.
G. EPENZIO and HOME acknowledge and agree that: (1) that EPENZIO
obtains its funding for equipment leases from leasing companies
that are independent of EPENZIO and HOME; (2) these leasing
companies control the factors that determine the amount of funding
that EPENZIO receives for equipment leases; (3) these factors are
influenced by interest rates and inflation and are subject to
change at any time; (4) the costs and referral fees set forth
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above are based on the factors that are in effect at the time this
Agreement is signed; and (5) if the factors are changed by the
leasing company, the referral fees will be adjusted accordingly
and will be subject to the same terms and conditions that the
lease company imposes on EPENZIO. Occasionally, these leasing
companies may impose other restrictions or qualifications on the
equipment leases for HOME's customers, such as reserve accounts or
special qualifying requirements. HOME agrees that it will be
subject to the same terms and conditions that the lease company
imposes on EPENZIO, with the exception that, if these changes
effect the gross funding and/or the reserve amount that is being
held, that EPENZIO will pay to HOME by more than 2%, then HOME
will be allowed to give 10 days notice to cancel this agreement,
and HOME may do business with another merchant account provider,
but EPENZIO has a right of first refusal to match any other offer
to HOME to provide Merchant Account Services to the customers of
HOME.
H. If the percentage of Poor Credit (scored C & D) applications that
are approved by Leasecomm for the customers of HOME exceeds 32%,
based on a 4 week rolling average, EPENZIO reserves the right to
adjust the referral fees paid to HOME to reflect this increase in
Poor Credit applications. To date, the percentage of HOME's
customers being scored as Poor Credit is 27.8%. EPENZIO will
supply these credit scores on the weekly report.
3. Rejects
A. It is agreed by HOME and EPENZIO, that all Rejected Lease
applications will be handled and settled as follows:
i. EPENZIO will retain and deposit the 1 st months payment and
apply this towards the cost of obtaining a merchant account
and supplying a virtual terminal product for the customer.
EXCEPT, if the customers 1 st months payment bounces or is
declined, EPENZIO will NOT supply a merchant account or
virtual terminal for this customer.
ii. EPENZIO will supply HOME with the customers checking
account number routing number.
iii. HOME will use its best efforts to collect any and all
monthly lease payments on the same terms and conditions as
the original Leasecomrn lease.
iv. HOME will prepare a monthly statement detailing all
payments that are received for the Rejected leases that are
generated from this Joint Marketing Project.
v. On the lOth of every month, HOME will pay to EPENZIO 30% of
all monies that are collected for these Rejected leases.
This will include all funds collected, whether from monthly
payments or from any collection processes.
vi. HOME will include on this report the names of all accounts
that HOME has been unable to collect the monthly lease
payment from. This will allow EPENZIO to turn off the
Gateway access for these customers virtual terminal.
B. If the percentage of applications that are by Rejected Leasecomm
for the customers of HOME exceeds 18%, based on a 4 week rolling
average, EPENZIO reserves the right to adjust the referral fees
paid to HOME to reflect this increase in Reject applications. To
date, the percentage of applications for HOME's customers that are
being rejected by Leasecomm is 14%
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4. Charge backs.
A. In the event that EPENZIO shall incur a charge back from any
source, including but not limited to the lease company or by
judicial or administrative process, on any referral for which HOME
has been paid a referral fee, HOME shall payor return to EPENZIO
the appropriate referral fee.
B. EPENZIO shall recoup the referral fees for each chargeback in the
following order: First, the fees should be deducted from the
Advance Marketing Costs paid from EPENZIO to HOME (See Section
1-A-1). Second, if there are no Advance Marketing Costs or the
deductions from these advances are inadequate to recoup the
referral fees.1 the fees should be deducted from any outstanding
adjustments above the advance owed to HOME by EPENZIO at the time
of the Settlement as provided in paragraph 2.A.iii above. Third,
if necessary after the first two methods of recoupment, the fees
should be paid to EPENZIO directly by HOME. Fourth, the fees
should be applied against the 45% portion (this is the portion of
these reserve funds that are credited to HOME) of the outstanding
fundings held in the reserve by LeaseComm. Each of these potential
resolutions to satisfying the debt incurred by the chargeback
should be attempted in the order they are listed. Should all such
potential resolutions fail to resolve the debt, and after EPENZIO
has exhausted all of its legal remedies against Leasecomm
concerning any funds that Leasecomm is holding in reserve, then
Xxxxx shall be individually, personally, unconditionally and
jointly liable to pay EPENZIO the total amount of the unrecovered
referral fees in question. Should all such potential
resolutions fail to resolve the debt, Xxxxx agrees to pay the
unrecovered referral fees to EPENZIO within thirty days of
notification from EPENZIO of the failed resolutions.
C. If the cause of the charge back is based on either fraud or
negligence of the owners, employees, representatives or agents of
EPENZIO or HOME, the company found to be responsible for the fraud
or negligence shall be responsible for the full amount of the
charge back and shall pay to the other company the respective
portion of the charge back within 10 days from the date of the
charge back.
D. The liability for charge backs for EPENZIO and HOME shall continue
for the length of term of the leases of HOME's customers.
5. Confidential and Proprietary Information.
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In connection with the Joint Marketing Project, EPENZIO may
furnish and may reveal to HOME certain oral and written
confidential, proprietary and/or trade secret information
concerning EPENZIO and its products and/or services (the "EPENZIO
Proprietary Information"). Similarly, HOME may furnish and may
reveal to EPENZIO certain oral and written confidential,
proprietary and/or trade secret information concerning HOME and
its products and/or services (the "HOME Proprietary Information").
The EPENZIO Proprietary Information and the HOME Proprietary
Information (collectively the "Proprietary Information") may
include, without limitation, certain specifications, designs,
plans, drawings, hardware, software, data, prototypes, marketing
plans or techniques, identification or lists of vendors,
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suppliers, mailing lists, list vendors and the like~ or other
business and technical information. As a condition to providing
such information, EPENZIO and HOME each agree, as set forth below,
to treat confidentially and to not otherwise disclose, and to
cause its respective directors, officers, members, employees,
representatives, agents and advisors (collectively the
"Representatives") to treat confidentially and to not otherwise
disclose, the Proprietary Information, whether such Proprietary
Information was furnished prior to, on or after the date of this
Agreement. In addition, for purposes of this Agreement,
"Proprietary Information" shall include, without limitation, any
discussions, summaries, analyses, studies, compilations, or other
documents or memorializations of or relating to the Proprietary
Information. All Proprietary Information, in whatever form
provided, shall remain the property of the party furnishing such
Proprietary Information.
6. Compliance with Laws, Ordinances and Regulations.
HOME, Xxxxx, EPENZIO, Xxxxxxxx and Xxxxxxxx agree that they will
strictly comply with all federal, state and local laws, ordinances
and regulations in connection with and all work or services
performed by them arising out of or relating in any way to this
Agreement and/or their business relationships with each other. In
the event HOME, Xxxxx, EPENZIO, Xxxxxxxx or Xxxxxxxx fail to do
so, all aforementioned parties may, in their sole discretion,
decide to terminate this Agreement forthwith, and to hold all
outstanding fees owed until a resolution can be found. HOME and
Xxxxx hereby indemnify and hold EPENZIO, Xxxxxxxx and Xxxxxxxx
harmless from any and all claims, complaints, demands and/or
damages arising out of or related in any way to any failure on the
part of HOME or Xxxxx to comply with all federal, state and local
laws, ordinances and regulations. Likewise, EPENZIO, Xxxxxxxx and
Xxxxxxxx hereby indemnify and hold HOME and Xxxxx harmless from
any and all claims, complaints, demands and/or damages arising out
of or related in any way to any failure on the part of EPENZIO,
Xxxxxxxx or Xxxxxxxx to comply with all federal, state and local
laws, ordinances and regulations.
7. Disclosures and/or Use of Proprietary Information.
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EPENZIO, Anderson, Crawford, HOME and Xxxxx acknowledge and agree
that: Proprietary Information constitutes valuable, special and
unique property of EPENZIO and HOME; (B) they may use the
Proprietary Information for the sole purpose of soliciting
merchant accounts in connection with the Joint Marketing Project
only; (C) they shall not disclose the Proprietary Information or
any information contained therein to any other corporation, person
or entity that is not a party to this agreement for any reason or
purpose whatsoever; (D) they shall not use the Proprietary
Information or any information contained therein for any purpose
other than the Joint Marketing Project; (E) they shall not
disclose or use the Proprietary Information or any information
contained therein; (F) they shall not make copies of any written
or computer-readable Proprietary Information; and (G) they shall
prevent the use of the Proprietary Information by, and disclosure
of the information contained therein to, any corporation, person,
or entity that is not a party to this agreement.
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8. Return of Proprietary Information.
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Within thirty days of receipt of written notice of termination of
the Joint Marketing Project, EPENZIO and HOME shall deliver to
each other m1 written or computer- readable copies of the
Proprietary Information, letters and all other information, that
is specific to the other party's business, which are in their
possession or under their control, regardless of whether prepared
by both parties or by their affiliates.
9. Term of Agreement.
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A. This agreement shall become effective on the date set forth above
and shall continue in effect until August 21, 2000, unless
terminated sooner as provided herein. At the end of the agreement,
HOME may do business with another merchant account provider, but
EPENZIO has a right of first refusal to match any other offer to
HOME to provide Merchant Account Services to the customers of
HOME.
B. Unless specifically stated otherwise, all terms of this agreement
will be considered to be in full force and effect for all seminars
and fundings that HOME and EPENZIO have participated in together.
10. Termination of Agreement.
-------------------------
Either party may terminate this Agreement for a material breach of
the terms of this Agreement at any time by giving the other party
written Notice of Termination ("Notice") at least thirty (30) days
prior to the effective date of termination. Either shall have the
option of preventing the termination of this Agreement by taking
corrective action that cures the material breach, if such
corrective action is taken prior to the end of the aforementioned
thirty (30) day time period. However, if there is evidence that
any material breach is caused by fraud, forgery, or any other
illegal act, either party may terminate this Agreement by giving
the other party written Notice at least seven {7) days prior to
the effective date of termination.
11. Amendment & Waiver.
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No modification or amendment hereof shall be valid and binding,
unless it be in and signed by the parties hereto. The waiver of
any provision hereof shall be effective only if in writing and
signed by the parties hereto, and then only in the specific
instance and for the particular purpose for which it was given. No
failure to exercise, and no delay in exercising, any right or
power hereunder shall operate as a waiver thereof.
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12. Enforcement of Agreement.
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This Agreement, and all disputes relating to this Agreement,
whether sounding in tort, contract or otherwise, shall be governed
and construed in accordance with the laws of the State of Utah.
All parties to this Agreement each consent and submit to the
personal jurisdiction of the state and federal courts located in
the State of Utah, and waive their rights to contest personal
jurisdiction. All parties agree that any legal action filed by any
party to enforce the terms of this Agreement must be filed
exclusively in the Third Judicial District Court, for the State of
Utah, in Salt Lake City, Utah. In the event of a dispute regarding
this Agreement, the prevailing party shall be entitled to an award
of attorneys' fees and costs from the non-prevailing party,
regardless of whether the dispute results in the filing of a
lawsuit
13. Assignment.
-----------
No party may assign its rights or duties under this Agreement
without the prior written consent of the other parties.
14. Modification.
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No amendment or modification of this Agreement shall be valid or
binding on made in writing and signed by each party.
15. Counterparts
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This Agreement may be executed in as many counterparts as may be
deemed necessary or convenient. This Agreement, and any
modifications, waivers or notifications relating thereto, may be
executed and delivered by facsimile or electronic mail. Any such
facsimile or electronic mail transmissions shall constitute the
final agreement of the parties and conclusive proof of such
agreement.
/s/ 7/21/00
------------------------------------------- -----------------------
Xxxx X. Xxxxxxxx, individually and as Date
President of and on behalf of EPENZIO
/s/ 7/21/00
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Xxxx X. Xxxxxxxx, individually and as Date
Chief Executive Officer of and on
behalf of EPENZIO
/s/ 7/21/00
------------------------------------------- -----------------------
Xxxxx Xxxxxxxx, individually and as Date
President and CEO of and on behalf
of H.O.M.E. Inc.
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AMENDMENT TO
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CONFIDENTIALITY AND MARKETING AGREEMENT
---------------------------------------
THIS IS AN AMENDMENT TO A CONFIDENTIALITY AND MARKETING AGREEMENT (the "
Agreement") that was signed on August 23, 2000 by Home Inc. ("HOME"), a Delaware
Corporation, of6774 South 1300 East, Salt Lake City, UT, and ePenzio, Inc.
("EPENZIO"), a Utah Corporation, of 0000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxxx #000,
Xxxx Xxxx Xxxx, XX, 00000, Xxxx Xxxxxxxx ("Xxxxxxxx") of 0000 Xxxxx Xxxx,
Xxxxxx, XX, 00000, Xxxx Xxxxxxxx ("Xxxxxxxx"), of 0000 Xxxx Xxxxx Xx, Xxxxx, XX
00000 and Xxxxx Xxxxxxxx ("Xxxxx") of 0000 Xxxxxxxxxxx Xx. X. #00, Xx. Xxxxxx,
XX 00000.
This Amendment is necessary because EPI has been forced to use a new financing
company, Leasecomm, for the financing contracts for HOME's customers as per
section 2B of the Agreement.
Section 2.A.iii.l. is amended as follows:
EPENZIO will figure the Earned Funding for HOME based on 67% of the applications
that were NOT cancelled by HOME'S customers within the customer's 3-day OR
3O-day "Right of Cancellation" periods.
Section 2.A.iii.2. is amended as follows:
The applications will be paid at the following rates for every $99.95 finance
package:
Applicants that score with a "P" or "S" credit = $1773.00
Applicants that score with a "T" or "Q" credit = $1545.00
Applicants that score with a "U" credit = $1251.00
The applications will be paid at the following rates for every $89.95 finance
package:
Applicants that score with a "P" or "S" credit = $1589.00
Applicants that score with a "T" or "Q" credit = $1383.00
Applicants that score with a "U" credit = $1119.00
The percentages of referral fees paid for the different credit scores for $99.95
and $89.95 finance packages for the Settlement will be the same as the
percentages for the actual $99.95 and $89.95 funding for this same seminar.
Section 2.A.3. is amended as follows:
For Example: HOME has a seminar where they accept 100 merchant account
applications from its customers. Of these 100 applications, the customers cancel
30 of the applications within their 3-day OR 30-day Right of Cancellation
periods. At the 60-day Settlement date, 47 applications (70 applications X 67% =
46.9) will be settled. If EPENZIO obtains actual funding on 50 applications -15
at $89.95 (30%) and 35 at $79.95 (70%) -and if the percentage of Credit Score
for these applications are: "P" and "S" = 50%, "T" and "Q" = 40% and "U" = 1 0%,
the Earned Funding Settlement amount will be figured as follows:
47 X 30% = 14 X 50% (P & S scores) =7 X $1773 = $12,411.00
47 X 30% = 14 X 40% (T & Q scores) = 6 X $1251 = $7506.00
47 X 30% = l4 X 10% U scores) = 1 X $1251 = $1251.00
Plus
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47 X 70% = 33 X 50% (P & S scores) = 17 X $1589 = $27,013.00
47 X 70% = 33 X 40% (T & Q scores) = 13 X $1383 = $17,979.00
47 X 70% = 33 X 10% U scores) = 3 X $1119 = $3357.00
----------------------------------------------------
Total Funding $69,517.00
Section 4.A. is amended as follows:
EPENZIO will withhold 10% of the Gross Financed amounts from all Earned Funding
settlement amounts to cover charge backs. EPENZIO will supply to HOME every 30
days, a balance sheet statement on the charge back reserve. (Based on the gross
financed amounts, the amounts that will be withheld per account are as follows:
$99.95- P&S = $246, $99.95- T&Q = $215, $99.95- U = $175, $89.95- P&S = $221,
$89.95- T&Q = $192, $89.95- U = $155).
Except as amended by this Amendment, in case of any conflicting or contradictory
provisions contained herein to the terms and provisions of the Agreement, this
Amendment shall prevail and the parties hereto do ratify and confirm the
Agreement in all respects, and agree to perform and be bound by the terms of the
Agreement as amended by this Amendment. This Amendment and the Agreement set
forth the entire agreement and understanding of the parties hereto in respect of
the subject matter contained in the Amendment and the Agreement, and supersede
all prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, partner,
employee or representative of any party hereto, including, but not limited to,
any proposed amendments to the Agreement, any e-mails between the parties and
any oral agreements or understandings the parties may have had concerning the
subject matter of the Agreement or the Amendment.
This Amendment may be executed in two or more counter-parts, each of which
shall be deemed an original, all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment on the dates
indicated opposite their signatures.
------------------------------------------- -----------------------
Xxxx X. Xxxxxxxx, individually and as Date
President of and on behalf of EPENZIO
------------------------------------------- -----------------------
Xxxx X. Xxxxxxxx, individually and as Date
Chief Executive Officer of and on
behalf of EPENZIO
------------------------------------------- -----------------------
Xxxxx Xxxxxxxx, individually and as Date
President and CEO of and on behalf
of H.O.M.E. Inc.
2
AMENDMENT TO
------------
CONFIDENTIALITY AND MARKETING AGREEMENT
---------------------------------------
THIS IS AN AMENDMENT TO A CONFIDENTIALITY AND MARKETING AGREEMENT (the "
Agreement") that was signed on August 23, 2000 by Home Inc. ("HOME"), a Delaware
Corporation, of 6774 South 1300 East, Salt Lake City, UT, and ePenzio, Inc.
("EPENZIO"), a Utah Corporation, of 0000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxxx #000,
Xxxx Xxxx Xxxx, XX, 00000, Xxxx Xxxxxxxx ("Xxxxxxxx") of 0000 Xxxxx Xxxx,
Xxxxxx, XX, 00000, Xxxx Xxxxxxxx ("Xxxxxxxx"), of 0000 Xxxx Xxxxx Xx, Xxxxx, XX
00000 and Xxxxx Xxxxxxxx ("Xxxxx") of 0000 Xxxxxxxxxxx Xx. X. #00, Xx. Xxxxxx,
XX 00000.
This Amendment is necessary because EPI has been forced to use a new financing
company, Leasecomm, for the financing contracts for HOME's customers as per
section 2B of the Agreement.
Section 2.A.iii.1. is amended as follows:
EPENZIO will figure the Earned Funding for HOME based on 63% of the applications
that were NOT cancelled by HOME'S customers within the customer's 3-day OR
30-day "Right of Cancellation" periods.
Section 2.A.iii.2. is amended as follows:
The applications will be paid at the rate of $1315 for every $99.95 finance
package.
The applications will be paid at the rate of$1125 for every $89.95 finance
package.
The percentages of referral fees paid for the different credit scores for $99.95
and $89.95 finance packages for the Settlement will be the same as the
percentages for the actual $99.95 and $89.95 funding for this same seminar.
Section 2.A.3. is amended as follows:
For Example: HOME has a seminar where they accept l00 merchant account
applications from its customers. Of these lOO applications, the customers cancel
30 of the applications within their 3-dayOR 30-day Right of Cancellation
periods. At the 60-day Settlement date, 44 applications (70 applications X 63% =
44.1) will be settled. If EPENZIO obtains actual funding on 40 applications -12
at $99.95 (30%) and 28 at $89.95 (70%) -the Earned Funding Settlement amount
will be figured as follows:
44X30%= 13 X $1315 = $17,095
Plus
44X7O% = 31 X $1125 = $49,500
Total Funding $66,595
1
Section 4.A. is amended as follows:
EPENZIO will withhold 5% of the Gross Financed amounts from all Earned Funding
settlement amounts to cover charge backs. (Based on the gross financed amounts,
the amounts that will be withheld per account are as follows: $99.95 = $65.75,
$89.95 = $56.25.)
Except as amended by this Amendment, in case of any conflicting or contradictory
provisions contained herein to the terms and provisions of the Agreement, this
Amendment shall prevail and the parties hereto do ratify and confirm the
Agreement in all respects, and agree to perform and be bound by the terms of the
Agreement as amended by this Amendment. This Amendment and the Agreement set
forth the entire agreement and understanding of the parties hereto in respect of
the subject matter contained in the Amendment and the Agreement, and supersede
all prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, partner,
employee or representative of any party hereto, including, but not limited to,
any proposed amendments to the Agreement, any e-mails between the parties and
any oral agreements or understandings the parties may have had concerning the
subject matter of the Agreement or the Amendment.
This Amendment may be executed in two or more counter-parts, each of which shall
be deemed an original, all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment on the dates
indicated opposite their signatures.
/s/ 1/26/01
------------------------------------------- -----------------------
Xxxx X. Xxxxxxxx, individually and as Date
President of and on behalf of EPENZIO
/s/ 1/26/01
------------------------------------------- -----------------------
Xxxx X. Xxxxxxxx, individually and as Date
Chief Executive Officer of and on
behalf of EPENZIO
/s/ 1/26/01
------------------------------------------- -----------------------
Xxxxx Xxxxxxxx, individually and as Date
President and CEO of and on behalf
of H.O.M.E. Inc.
2
CONFIDENTIALITY AND MARKETING AGREEMENT
---------------------------------------
THIS CONFIDENTIALITY AND MARKETING AGREEMENT (this "Agreement") is entered into
by Home Inc. ("HOME"), a Delaware Corporation, of 6774 South 1300 East, Salt
Lake City, UT, and ePenzio, Inc. ("EPENZIO"), a Utah Corporation, of 0000 Xxxx
Xxxxxxxxxx XxxxXxx, Xxxxx #000, Xxxx Xxxx Xxxx, XX, 00000, Xxxx Xxxxxxxx
("Xxxxxxxx") of 0000 Xxxxx Xxxx, Xxxxxx, XX, 00000, Xxxx .,. Xxxxxxxx
("Xxxxxxxx"), of 0000 Xxxx Xxxxx Xx, Xxxxx, XX 00000 and Xxxxx Xxxxxxxx
("Xxxxx") of 0000 Xxxxxxxxxxx Xx. X. #00, Xx. Xxxxxx, XX 00000, effective August
23,2000.
RECITALS
A. HOME and EPENZIO are interested in jointly marketing certain
products and services of EPENZIO (the "Joint Marketing Project").
B. In connection with the joint marketing effort, HOME and EPENZIO
shall have access to certain trade secrets and confidential and
proprietary information of each other.
C. HOME, Xxxxx (president and Chief Executive Officer of HOME),
EPENZIO, Xxxxxxxx (President of EPENZIO) and Xxxxxxxx (Chief
Executive Officer of EPENZIO) desire to preserve and protect such
confidential and proprietary information.
D. To that end, HOME, Xxxxx, EPENZIO, Xxxxxxxx and Xxxxxxxx agree as
follows:
AGREEMENT
1. Rights and Obligations
----------------------
EPENZIO shall provide the following:
A. Fulfil1ment services, including staffing, management, and
processing for all credit card merchant accounts offered
and sold by HOME, and POS products, POS Equipment Virtual
terminal, software, merchant services and software
solutions ("EPENZIO Products") for HOME to market to
businesses, proprietors, entrepreneurs, and other potential
or existing HOME clients, customers and/or merchants.
B. Financing sources for EPENZIO Products, finance package
funding (which may be through a subcontractor), and
disbursement of such finance package proceeds. EPENZIO
shall further take all steps necessary to ensure that
EPENZIO delivers to HOME's vendor(s) I) an approval code
and merchant account identification number from EPENZIO or
its subcontractor merchant account company, and 2) written
verification of finance package approval for each HOME
client, customer and/or merchant.
C. Merchant account application processing. EPENZIO or its
subcontractor will accept for processing, properly prepared
applications, agreements and purchase orders submitted for
EPENZIO products from HOME. EPENZIO will further ensure
that all steps reasonably necessary will be taken,
1
including completion of any necessary administrative
requirements, to insure funding for each sale or finance
package of a merchant account to HOME clients, customers
and/or merchants.
D. EPENZIO will supply, at no cost, marketing materials,
including applications, agreements and purchase orders for
EPENZIO Products. Said materials shall be in compliance
with all applicable state and federal laws, including those
concerning truth-in-lending and other financial service
Jaws and regulations. All such marketing materials or
materials bearing EPENZIO's trademarks or logos shall be
used by HOME only for the purpose of promoting EPENZIO
Products, and only after EPENZIO's prior approval.
2. Referral Fees.
--------------
A. HOME will furnish EPENZIO with leads of HOME's customers
for the sole purpose of EPENZIO contacting those customers
to sell them Credit Card Processing equipment, including
but not limited to Hardware terminals, Processing software
and Virtual Tenninals, and assist those customers in
obtaining a Merchant Account. Most of these contacts will
be made at seminar events that are sponsored and paid for
by HOME. EPENZIO will pay referral fees to HOME for only
those referrals that purchase or finance this Credit Card
processing equipment from EPENZIO. EPENZIO will pay HOME
referral fees according to the following schedule:
i. EPENZIO will advance HOME $50,000 in the form of an
"Advanced Marketing Payment " for each seminar event.
This payment will be made by no later than the
Wednesday that is three (3) weeks prior to the
seminar event. EPENZIO has currently paid the Advance
Marketing Payment for two weeks in advance. EPENZIO
will make an additional $16,666 Advance Marketing
Payment for the next 6 weeks to achieve the 3-week
advance payment status. HOME shall only use the
Advance Marketing Payment paid by EPENZIO for
advertising and promotion of HOME seminars and
business sessions where EPENZIO products and services
will be sold. The Advanced Marketing Payment will be
deemed an as an advance towards Earned Funding as
further described below.
ii. Should, through an Act of God, a scheduled seminar or
business session be cancelled, EPENZIO will only
recover 50% of the Advance Marketing Payment paid for
that seminar .Should such cancellation occur more
than one-time in a calendar year, EPENZIO will be
allowed to recover the full amount of the Advance
Marketing Payment for that seminar. In either event,
EPENZIO will deduct a maximum of $10,000 per week
from the following weeks Advance Marketing Payment
until these amounts are recovered.
iii. On the first Wednesday, at least 60 days, EPENZIO
will prepare an Earned Funding Settlement (the
Settlement) statement for each seminar event. The
Settlement will be calculated for each seminar as
follows:
1. EPENZIO will figure the Earned Funding for
HOME based on 67% of the applications that
were NOT cancelled by HOME'S customers within
the customer's 3-day "Right of Cancellation"
period.
2. The applications will be paid at the rate of
$1650 for every $89.95 finance package and
$1400 for every $79.95 finance package, The
2
percentages of referral fees for $89.95 and
$79.95 finance packages for the Settlement
will be the same as the percentages for the
actual $89.95 and $79.95 funding for this same
seminar.
3. For Example: HOME has a seminar where
they accept l00 merchant account applications
from its customers. Of these lOO applications,
the customers cancel 30 of the applications
within their 3-day Right of Cancellation
period. At the 60-day Settlement date, 43
applications (70 applications X 62% = 43.4)
will be settled. If EPENZIO obtains actual
funding on 50 applications -15 at $89.95 (30%)
and 35 at $79.95 (70%) -the Earned Funding
Settlement amount will be figured as follows:
47 X 30% = 14 X $1650 = $23,100
Plus
47 X 70% = 33 X $1400 = $46,200
Total Earned Funding = $69,300
4. In connection with the Earned Funding
Settlement, the Advanced Marketing Payment
will be credited towards the Earned Funding
due to HOME. If the Earned Funding owing for a
particular seminar exceeds the Advanced
Marketing Costs actually paid in advance by
EPENZIO for that seminar, these funds will be
paid to HOME in addition to the next Advanced
Marketing Payment-or, if there is no Advanced
Marketing Payment paid in the following thirty
days, the remaining Earned Funding will be
paid within thirty (30) days of Settlement, If
there is a deficit of Earned Funding, meaning
that the Earned Funding for a particular
seminar is less than the Advanced Marketing
Payment previously made by EPENZIO for that
same seminar, the difference will be deducted
from the next week's Advanced Marketing
Payment made by EPENZIO to HOME. If no
Advanced Marketing Payment is made in the next
thirty (30) days, then HOME will pay the
difference to EPENZIO within thirty (30) days
of Settlement, If HOME's Earned Funding for a
seminar exceeds the Advanced Marketing Payment
for that seminar by more than 10% for 2 weeks
running, then the next Advanced Marketing
Payment will be increased to the nearest
$5,000 increment based on the average of the
Earned Funding for the previous 2 weeks.
Likewise, if HOME's Earned Funding for a
seminar are less than the Advanced Marketing
Payments for that seminar by more than 10% for
2 weeks running, then the Advanced Marketing
Payment will be decreased to the nearest $5000
increment based on the average of the Earned
Funding for the previous 2 weeks.
5. The Virtual ternlinal applications will be
paid at the rate of$1650 for every $89.95
finance package or cash sale and $1400 for
every $79.95 finance package or cash sale.
These amounts will be paid for all
applications that have been approved and
funded as of the date of the settlement
6. EPENZIO will pay to HOME additional referral
fees that HOME agrees will only be used to pay
HOME's road crew. These referral fees will be
paid at the rate of $30 for every
3
substantia11y (all forms are complete and
signed), non-cancelled application that is
submitted by HOME to EPENZIO. These payments
will be made separately no later than the
Wednesday two weeks following the seminar. The
number of substantially complete files will be
verified by EPENZIO's seminar representative
and reported to HOME's road crew at the end of
each seminar event.
8. The following exceptions apply to the above
referenced pay schedule:
a. For the seminar weeks of July 24th
through the date of this agreement,
Home's Earned Funding will be figured at
the rate of $1375 for every $89.95
finance package and $1135 for every
$79.95 finance package based upon the 62%
of non-cancelled agreements as stated in
previous contract.
b. For the seminar weeks of Apri117th
through May 18th, all of the reserve that
has been withheld will belong to EPENZIO.
c. The seminar weeks of May 22nd through
July 21st have been settled and adjusted
for as of the date this agreement was
signed but still fall under the terms of
the previous contract (s) for future
settlement. Road crew referral payments
are current through the week ending
September 9, 2000.
*If an exception is not specifically listed above,
all of the terms of this agreement apply.
B. At the end of this Joint Marketing Agreement, a final
Settlement statement will be prepared 60 days following the
last seminar. This Statement will reconcile all Advanced
Marketing Payments and Earned Funding for every seminar or
business session that HOME has sponsored and paid for. At
this time, it will be determined if there is an excess or
deficit in the Earned Funding for all seminars. If there is
a deficit of Earned Funding, HOME will pay this deficit
amount to EPENZIO within 30 days of completion of the final
Settlement Statement. If HOME fails to pay within this
30-day period, Xxxxx agrees to pay the unrecovered Earned
Funding to EPENZIO within thirty days of written
notification from EPENZIO. If there is an excess of Earned
Funding, EPENZIO will pay this excess to HOME within 30
days of completion of the final Settlement Statement,
EXCEPT, in the event that HOME does not fully comply with
all of the terms of this agreement in ending this Joint
Marketing Agreement, EPENZIO may elect to withhold the
excess Earned Funding to cover any reasonable costs
involved, so long as EPENZIO gives written notice to HOME
of any failure to comply with the terms of the Agreement,
identifying with specificity any such failures and the
resulting costs to EPENZIO, and if such failures are
capable of cure, HOME has an opportunity to cure. If
EPENZIO fails to pay within this thirty-day period,
Xxxxxxxx and Xxxxxxxx agree to pay the excess Earned
Funding to HOME within thirty (30) days of written
notification from HOME. Likewise, if EPENZIO has not
complied with all material terms of this agreement, HOME
may withhold any Earned Funding deficit to cover any
reasonable costs that it has incurred, on the same terms
that EPENZIO may withhold payments as described in this
paragraph. This will not limit any other damages that the
parties-may be entitled to. EPENZIO may consider that HOME
has ended this Joint Marketing Agreement if HOME has less
than 20 approved applications from its seminars in any
given calendar month.
4
C. Upon request, EPENZIO will provide HOME with any and all
current information on factors and reserve amounts used by
Leasecomm, Travelers or any other financial institution
(Financial Institutions) to determine payouts on the
finance packages that are submitted by HOME. EPENZIO and
HOME agree to be bound by whatever terms these Financial
Institutions impose on the funding for the finance packages
for HOME's customers.
D. These referral fees are based on HOME providing an
e-commerce enabled web site and shopping cart/online order
form that are compatible with EPENZIO's online transaction
processing system. EPENZIO's leasing company requires that
the web site and shopping cart/online order form be
provided as part of the terms of the finance package. If it
becomes necessary for EPENZIO to supply the web site and
shopping cart/online order form, these referral fees will
be reduced in an amount to reasonably reflect these costs.
E. EPENZIO shall retain payment for any HOME referrals sold
through the EPENZIO affiliate site. EPENZIO shall be solely
responsible for all referral commissions paid to customers
signing up through the EPENZIO affiliate site or
approaching EPENZIO directly. In the event that HOME should
establish its own referral program. HOME shall be paid
according to the commission schedule in paragraph 2.A.iii.2
in this agreement as long as completed finance package and
merchant account applications are delivered to EPENZIO.
HOME shall be solely responsible for all referral
commissions paid to customers signing up through the HOME
affiliate site.
F. EPENZIO has several different processing solutions
available for HOME to sell to its clients, as well as
finance package terms of 12,24,36 and 48 months. Pricing
and referral fees will vary depending upon the options and
finance package terms chosen. EPENZIO will provide price
quotes to HOME utilizing any combination of processing
solutions and finance package terms.
G. EPENZIO and HOME acknowledge and agree that: (I) that
EPENZIO obtains its funding for equipment finance packages
from Financial Institutions that are independent of EPENZIO
and HOME; (2) these Financial Institutions control the
factors that determine the amount of funding that EPENZIO
receives for equipment finance packages; (3) these factors
are influenced by interest rates and inflation and are
subject to change at any time; (4) the costs and referral
fees set forth above are based on the factors that are in
effect at the time this Agreement is signed; and (5) if the
factors are changed by the Financial Institutions, or if
the Financial Institutions do not perform as promised, the
referral fees may be adjusted accordingly and will be
subject to the same terms and conditions that the Financial
Institutions impose on EPENZIO. Occasionally, these
Financial Institutions may impose other restrictions or
qualifications on the equipment finance packages for HOME's
customers, such as reserve accounts or special qualifying
requirements. HOME agrees that it will be subject to the
same terms and conditions that the Financial Institutions
impose on EPENZIO, with the exception that, if these
changes effect the gross funding and/or the reserve amount
that is being held, that EPENZIO will pay to HOME by more
than 5%, then HOME will be allowed to give 10 days notice
to cancel this agreement, and HOME may do business with
another merchant account provider, but EPENZIO has a right
of first refusal to match any other offer to HOME to
provide Merchant Account Services to the customers of HOME.
5
H. If the percentage of Poor Credit (scored C & D)
applications that are approved by the Financial
Institutions for the customers of HOME exceeds 28%, based
on a 4 week rolling average, EPENZIO reserves the right to
prospectively adjust the referral fees paid to HOME to
reflect this increase in Poor Credit applications. If it
becomes necessary for EPENZIO to adjust the referral fees
because of an increase in poor credit applications, HOME
will not be allowed to cancel this agreement because of
this change unless the adjustment is greater than 5%, in
which case HOME may terminate this Agreement upon 10 days
written notice. To date, the percentage of HOME's customers
being scored as Poor Credit is 27.8%. EPENZIO will supply
these credit scores on the weekly report.
3. Rejects
-------
A. It is agreed by HOME and EPENZIO, that all Rejected Finance
package applications will be handled and settled as
follows:
i. EPENZIO will retain all monies received for Rejected
applications and apply this towards the cost of
obtaining a merchant account and supplying a virtual
terminal product for the customer. EXCEPT, if the
customers 1st months payment bounces or is declined,
EPENZIO will NOT supply a merchant account or virtual
terminal for this customer.
B. If the percentage of applications that are rejected by
Leasecomm for the customers of HOME exceeds 16%, based on a
4 week rolling average, EPENZIO reserves the right to
prospectively adjust the referral fees paid to HOME to
reflect this increase in Reject applications. If the
adjustment is greater than 5%, then HOME may terminate this
Agreement upon 10 days written notice. To date, the
percentage of applications for HOME's customers that are
being rejected by Leasecomm is 14%
4. Charge backs.
-------------
A. EPENZIO will withhold 5% from all Earned Funding settlement
amounts to cover charge backs. EPENZIO will supply to HOME
every 30 days, a balance sheet on the charge back reserve.
B. If the cause of the charge back is based on either fraud or
negligence of the owners, employees, representatives or
agents of EPENZIO or HOME, the company found to be
responsible for the fraud or negligence shall be
responsible for the full amount of all charge backs and
shall pay to the other company the respective portion of
the charge back within 10 days from the date of the charge
back.
c. The liability for charge backs for EPENZIO and HOME shall
continue for the length of term of the finance packages
of HOME's customers.
5. Third Party Non-Performance
---------------------------
Both EPENZIO and HOME agree that third party providers
6
referred to within are defined as those separate entities,
individuals, vendors, business groups, companies,
corporations or partnerships that provide products and/or
services for the seminars presented by HOME, and that such
third party providers are presenting products and/or
services at the above mentioned seminars. Also, both
parties agree that the terms non-performance or inadequate
performance relate to the performance which has been
contracted for, and subsequently has not been provided. In
the event that the third party went out of business and
could not perform, HOME would then undertake the
responsibility of performing under the contracts with
consumers, either themselves or arranging for another third
party. If HOME fails to provide these services as
specified, HOME will be responsible for the full amount of
any charge backs that occur from the failure to provide
these services in a timely manner. If HOME can not or does
not pay these charge backs to EPENZIO within 30 days, then
Xxxxx shall be individually, personally, unconditionally
and jointly liable to pay EPENZIO the total amount of the
un-recovered referral fees in question. Should all such
potential resolutions fail to resolve the debt, Xxxxx
agrees to pay the un-recovered referral fees to EPENZIO
within thirty days of notification from EPENZIO of the
failed resolutions.
6. Confidential and Proprietary Information.
-----------------------------------------
In connection with the Joint Marketing Project, EPENZIO may
furnish and may reveal to HOME certain oral and written
confidential, proprietary and/or trade secret information
concerning EPENZIO and its products and/or services (the
"EPENZIO Proprietary Information"). Similarly, HOME may
furnish and may reveal to EPENZIO certain oral and written
confidential, proprietary and/or trade secret information
concerning HOME and its products and/or services (the "HOME
Proprietary Information"). The EPENZIO Proprietary
Information and the HOME Proprietary Information
(collectively the "Proprietary Information") may include,
without limitation, certain specifications, designs, plans,
drawings, hardware, software, data, prototypes, marketing
plans or techniques, identification or lists of vendors,
suppliers, mailing lists, list vendors and the like.. or
other business and technical information. As a condition to
providing such information, EPENZIO and HOME each agree, as
set forth below, to treat confidentially and to not
otherwise disclose, and to cause its respective directors,
officers, members, employees, representatives, agents and
advisors ( collectively the "Representatives") to treat
confidentially and to not otherwise disclose, the
Proprietary Information, whether such Proprietary
Information was furnished prior to, on or after the date of
this Agreement. In addition, for purposes of this
Agreement, "Proprietary Information" shall include, without
limitation, any discussions, summaries, analyses, studies,
compilations, or other documents or memorializations of or
relating to the Proprietary Information. All Proprietary
Information, in whatever form provided, shall remain the
property of the party furnishing such Proprietary
Information.
7. Compliance with Laws, Ordinances and Regulations.
-------------------------------------------------
HOME, Xxxxx, EPENZIO, Xxxxxxxx and Xxxxxxxx agree that they
will strictly comply with all federal, state and local
laws, ordinances and regulations in connection with any and
all work or services performed by them arising out of or
relating in any way to this Agreement and/or their business
relationships with each other. In the event HOME, Xxxxx,
7
EPENZIO, Xxxxxxxx or Xxxxxxxx fail to do so, all
aforementioned parties may, in their sole discretion,
decide to terminate this Agreement forthwith, and to hold
all outstanding fees owed until a resolution can be found.
HOME and Xxxxx hereby indemnify and hold EPENZIO, Xxxxxxxx
and Xxxxxxxx ham1less from any and all claims, complaints,
demands and/or damages arising out of or related in any way
to any failure on the part of HOME or Xxxxx to comply with
all federal, state and local laws, ordinances and
regulations. Likewise, EPENZIO, Xxxxxxxx and Xxxxxxxx
hereby indemnify and hold HOME and Xxxxx ham1less from any
and all claims, complaints, demands and/or damages arising
out of or related in any way to any failure on the part
of EPENZIO, Xxxxxxxx or Xxxxxxxx to comply with all
federal, state and local laws, ordinances and regulations.
8. Disclosures and/or Use of Proprietary Information.
--------------------------------------------------
EPENZIO, Anderson, Crawford, HOME and Xxxxx acknowledge and
agree that: (A) the Proprietary Information constitutes
valuable, special and unique property of EPENZIO and HOME;
(B) they may use the Proprietary Information for the sole
purpose of soliciting merchant accounts in connection with
the Joint Marketing Project only; (C) they shall not
disclose the Proprietary Information or any information
contained therein to any other corporation, person or
entity that is not a party to this agreement for any reason
or purpose whatsoever; (D) they shall not use the
Proprietary Information or any information contained
therein for any purpose other than the Joint Marketing
Project; (E) they shall not disclose or use the Proprietary
Information or any information contained therein; (F) they
shall not make copies of any written or computer-readable
Proprietary Information; and (a) they shall prevent the use
of the Proprietary Information by, and disclosure of the
information contained therein to, any corporation, person,
or entity that is not a party to this agreement.
9. Return of Proprietary Information.
----------------------------------
Within thirty days of receipt of written notice of
termination of the Joint Marketing Project, EPENZIO and
HOME shall deliver to each other all written or
computer-readable copies of the Proprietary Information,
letters and all other information, that is specific to the
other party's business, which are in their possession or
under their control, regardless of whether prepared by both
parties or by their affiliates.
10. Term of Agreement.
------------------
A. This agreement shall become effective on the date set forth
above and shall continue in effect for one year, unless
terminated sooner as provided herein. At the end of the
agreement, HOME and/or Xxxxx Xxxxxxxx may do business with
another merchant account provider, but EPENZIO has a right
of first refusal to match any other offer to HOME and/or
Xxxxx Xxxxxxxx to provide Merchant Account Services to the
customers of HOME and/or Xxxxx Xxxxxxxx
B. Both parties acknowledge that there is another
Confidentiality and Marketing Agreement dated July 21, 2000
that covers all relationships between the two parties up to
and including the date that this agreement is signed.
8
11. Termination of Agreement.
-------------------------
Either party may terminate this Agreement for a material
breach of the terms of this Agreement at any time by giving
the other party written Notice of Termination ("Notice") at
least thirty (30) days prior to the effective date of
termination. Either party shall have the option of
preventing the termination of this Agreement by taking
corrective action that cures the material breach, if such
corrective action is taken prior to the end of the
aforementioned thirty (30) day time period. However, if
there is evidence that any material breach is caused by
fraud, forgery, or any other illegal act, either party may
tem1inate this Agreement by giving the other party written
Notice at least seven (7) days prior to the effective date
of termination.
12. Amendment & Waiver.
-------------------
No modification or amendment hereof shall be valid and
binding, unless it be in writing and signed by the parties
hereto. The waiver of any provision hereof shall be
effective only if in writing and signed by the parties
hereto, and then only in the specific instance and for
the particular purpose for which it was given. No failure
to exercise, and no delay in exercising, any right or power
hereunder shall operate as a waiver thereof.
13. Enforcement of Agreement.
-------------------------
This Agreement, and all disputes relating to this
Agreement, whether sounding in tort, contract or otherwise,
shall be governed and construed in accordance with the laws
of the State of Utah. All parties to this Agreement each
consent and submit to the personal jurisdiction of the
state and federal courts located in the State of Utah, and
waive their rights to contest personal jurisdiction. All
parties agree that any legal action filed by any party to
enforce the terms of this Agreement must be filed
exclusively in the Third Judicial District Court, for the
State of Utah, in Salt Lake City, Utah. In the event of a
dispute regarding this Agreement, the prevailing party
shall be entitled to an award of attorneys' fees and costs
from the non-prevailing party, regardless of whether the
dispute results in the filing of a lawsuit
14. Assignment.
-----------
No party may assign its rights or duties under this
Agreement without the prior written consent of the other
parties.
15. Modification.
-------------
No amendment or modification of this Agreement shall be
valid or binding on unless made in writing and signed by
each party.
16. Counterparts.
-------------
This Agreement may be executed in as many counterparts as
may be deemed necessary or convenient. This Agreement, and
9
any modifications, waivers or notifications relating
thereto, may be executed and delivered by facsimile or
electronic mail. Any such facsimile or electronic mail
transmissions shall constitute the final agreement of the
parties and conclusive proof of such agreement.
/s/ 10/11/00
------------------------------------------- -----------------------
Xxxx X. Xxxxxxxx, individually and as Date
President of and on behalf of EPENZIO
/s/ 10/11/00
------------------------------------------- -----------------------
Xxxx X. Xxxxxxxx, individually and as Date
Chief Executive Officer of and on
behalf of EPENZIO
/s/ 10/11/00
------------------------------------------- -----------------------
Xxxxx Xxxxxxxx, individually and as Date
President and CEO of and on behalf
of H.O.M.E. Inc.
10
