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EXHIBIT 10.3
FORM OF INTERNATIONAL BANK AGREEMENT
(MERCHANT ACCOUNTS SERVICES
AND REFERRALS AGREEMENT)
BY AND BETWEEN
[NAME OF INTERNATIONAL BANK]
AND
[NAME OF INTERNATIONAL BANK'S SALES AGENT]
AND
ORBIS DEVELOPMENT INC.
DATED ________________________, 2001
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MERCHANT ACCOUNTS SERVICES
AND REFERRALS AGREEMENT
This Merchant Accounts Services and Referrals Agreement is made this _____ day
of _____________, 2000 between [NAME OF INTERNATIONAL BANK] hereinafter referred
to as "BANK") a [JURISDICTION] Corporation of [ADDRESS OF BANK], [NAME OF BANK'S
SALES AGENT] (hereinafter referred to as "BANK'S AGENT") a [JURISDICTION]
Corporation of [ADDRESS OF BANK'S AGENT], and ORBIS DEVELOPMENT INC.
(hereinafter referred to as "ORBIS") a Nevada Corporation of X.X. Xxx 00000,
Xxxxxx Xxxx, Xxxxxx 00000, XXX,.
RECITALS
WHEREAS:
A. BANK is duly authorized by Visa International Inc. (hereinafter
referred to as "VISA") and MasterCard International Inc. (hereinafter
referred to as "MasterCard") to provide merchant services to businesses
accepting credit cards issued under the VISA or MASTERCARD programmes.
A. BANK provides Internet Merchants with Merchant Accounts thereby
enabling them to settle the proceeds of their credit card transactions.
B. BANK'S AGENT has an exclusive agreement with BANK with respect to
BANK's Credit Card Acquiring Programme and provides all co-ordination
required to enable and facilitate the provision by BANK of credit card
transaction services to its customers.
A. BANK'S AGENT may from time to time subcontract some of its duties to
ORBIS for the purposes of this agreement.
A. BANK'S AGENT is a provider of services to Banks and to Internet
Merchants and receives inquiries and applications from Merchants
desirous of establishing Merchant Accounts whereby they can settle the
proceeds of their credit card transactions.
A. ORBIS is a provider of services to Banks and to Internet Merchants and
receives inquiries and applications from Merchants desirous of
establishing Merchant Accounts whereby they can settle the proceeds of
their credit card transactions.
A. BANK will accept referrals, from BANK'S AGENT and or ORBIS, of those
Merchants desirous of obtaining Merchant Accounts.
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NOW THEREFORE THE PARTIES HEREBY AGREE AS FOLLOWS:
ARTICLE 1
DEFINITIONS
The following definitions apply to the terms set forth below when used in this
Agreement:
1.1 "Agreement" shall mean this Merchant Accounts Services and Referrals
Agreement as amended from time to time including any Exhibits attached
hereto from time to time.
1.2 "Interchange" means the contracts, agreements, rules, regulations,
procedures and costs governing the relationships between, or the
actions in accordance with the contracts, agreements, rules,
regulations and procedures by, any two or more Entities in connection
with the Interchange Settlement.
1.3 "Interchange Settlement" means the process by which BANK (a) initiates
payment for MASTERCARD and VISA Transaction Card Tickets, (b) receives
payment for MASTERCARD and VISA Transaction Card Tickets, and (c)
remits and receives payments for charge backs and other Interchange
fees and expenses.
1.4 "MASTERCARD" means MasterCard International Inc. or its successors or
assigns.
1.5 "Merchant" means an entity that has the right to acquire or otherwise
acquires a Transaction Card Ticket as payment for goods, services, or
otherwise.
1.6 "Merchant Account" means an arrangement between BANK and a Merchant by
which BANK, has agreed to provide Merchant processing services for that
Merchant.
1.7 "Merchant Settlement Services" means providing for payment to
businesses of charges created by the holders of credit cards by VISA or
MASTERCARD and all related services.
1.8 "Term" is defined in Section 4.1 of this Agreement.
1.9 "Transaction Card" means a payment card issued pursuant to a license
from MASTERCARD, VISA or any other card issuing organization with which
BANK has a relationship that permits processing of accounts.
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1.10 Transaction Card Ticket" means a record (whether paper, magnetic,
electronic or otherwise) which is created to evidence the use of a
Transaction Card as payment for goods, services, cash advances or
otherwise or for a credit or refund or otherwise.
1.11 "VISA" means VISA International Inc. or its successors or assigns.
1.12 "Basis point" means one hundredth (1/100th) of one (1) per cent.
1.13 "All Other Revenue" means the revenue derived from services related to
the settlement of credit card transactions including but not limited to
Scrubbing, Transactions, Retrievals and Chargebacks and the amount by
which the Merchant Discount Rate exceeds [STATE RATE AS %].
1.11 "All Other Net Income" means the net income derived from services
related to the settlement of credit card transactions including but not
limited to Scrubbing, Transactions, Retrievals and Chargebacks and the
net amount by which the Merchant Discount Rate exceeds [STATE RATE AS
%].
ARTICLE 2
PROCESSING SERVICES
1.1.1 In order to facilitate the processing of Credit Card Transactions for
Merchants sourced by the parties to this agreement BANK agrees to enter
into a "Processing Services Agreement" with [NAME OF PROCESSOR]
(hereinafter referred to as "PROCESSOR").
2.2 BANK will communicate with VISA and MASTERCARD with respect to
appointing PROCESSOR as an additional Processor thereby providing
PROCESSOR with a VISA BIN and or a MASTERCARD ICA.
ARTICLE 3
PAYMENT TO THE PARTIES
3.1 BANK shall charge its Merchants for Merchant Settlement Services a fee
known as the Merchant Discount Rate
3.2 The Standard Merchant Discount Rate shall be [STATE RATE AS %] of the
amount of each transaction.
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3.3 The rate can be increased or decreased based on the market forces
prevailing from time to time. However the minimum that BANK will charge
a merchant is [STATE RATE AS %] unless mutually agreed to in writing by
all the parties to this agreement.
3.4 If BANK sources a Merchant BANK will set the rate to be charged subject
to 3.3 above.
3.5 If BANK'S AGENT refers a Merchant to BANK, BANK'S AGENT will propose
the rate to be charged subject to 3.3 above.
3.6 If ORBIS refers a Merchant to BANK, ORBIS will propose the rate to be
charged subject to 3.3 above.
3.7 If BANK sources a Merchant the Merchant Discount Rate charged shall be
divided between the parties as follows:
(i) BANK shall be entitled to [STATE NUMBER] basis points of the
Standard Merchant Discount Rate of [STATE RATE AS %]. The
balance of the Merchant Discount Rate remaining after the
Interchange Rate has been paid shall be divided among the
parties as follows:
BANK shall receive
BANK'S AGENT shall receive
ORBIS shall receive
(i) If the rate charged is lower than the Standard Merchant
Discount Rate BANK shall be entitled to a sum equal to [STATE
NUMBER] basis points) of the Standard Merchant Discount Rate
less [STATE RATE AS %] of the amount by which the rate charged
is reduced below the Standard Merchant Discount Rate. The
balance of the Merchant Discount Rate remaining after the
Interchange Rate has been paid shall be divided among the
parties as follows:
BANK shall receive
BANK'S AGENT shall receive
ORBIS shall receive
3.8 If BANK'S AGENT refers a Merchant to BANK the Merchant Discount Rate
charged shall be divided among the parties as follows:
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(i) BANK shall be entitled to [STATE NUMBER] basis points) of the
Standard Merchant Discount Rate [STATE RATE AS %]. The balance
of the Merchant Discount Rate remaining after the Interchange
Rate has been paid shall be divided as follows:
BANK'S AGENT shall receive
ORBIS shall receive
(i) If the rate charged is lower than the Standard Merchant
Discount Rate BANK shall be entitled to a sum equal to [STATE
NUMBER] basis points of the Standard Merchant Discount Rate
less thirty per cent [STATE RATE AS %] of the amount by which
the rate charged is reduced below the Standard Merchant
Discount Rate. The balance of the Merchant Discount Rate
remaining after the Interchange Rate has been paid shall be
divided as follows:
BANK'S AGENT shall receive
ORBIS shall receive
3.9 If ORBIS refers a Merchant to BANK the Merchant Discount Rate charged
shall be divided between the parties as follows:
(i) BANK shall be entitled to [STATE NUMBER] basis points of the
Standard Merchant Discount Rate [STATE RATE AS %]. The balance
of the Merchant Discount Rate remaining after the Interchange
Rate has been paid shall be divided as follows:
ORBIS shall receive
BANK'S AGENT shall receive
(i) If the rate charged is lower than the Standard Merchant
Discount Rate BANK shall be entitled to a sum equal to [STATE
NUMBER] basis points of the Standard Merchant Discount Rate
less [STATE RATE AS %] of the amount by which the rate charged
is reduced below the Standard Merchant Discount Rate. The
balance of the Merchant Discount Rate remaining after the
Interchange Rate has been paid shall be divided as follows:
ORBIS shall receive
BANK'S AGENT shall receive
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3.10 All Other Net Income shall be divided as follows:
(i) If BANK sources a Merchant BANK shall receive [STATE RATE AS
%], BANK'S AGENT shall receive [STATE RATE AS %], and ORBIS
shall receive [STATE RATE AS %].
(ii) If BANK'S AGENT refers a Merchant to BANK, BANK'S AGENT shall
receive [STATE RATE AS %], BANK will receive [STATE RATE AS
%], and ORBIS shall receive [STATE RATE AS %].
(i) If ORBIS refers a Merchant to BANK, ORBIS will receive[STATE
RATE AS %], BANK will receive [STATE RATE AS %], and BANK'S
AGENT will receive [STATE RATE AS %].
ARTICLE 4
TERM OF AGREEMENT
4.1 TERM. This Agreement is effective from the date hereof and shall remain
in effect until (xx years) (the "Term").
ARTICLE 5
REPRESENTATIONS
1.1 BANK'S REPRESENTATIONS.
BANK represents and warrants that:
(a) It is a corporation validly organized and existing under the
laws of [STATE JURISDICTION].
(b) It has full power and authority under its organizational
documents and the laws of [STATE JURISDICTION] to execute and
deliver this Agreement and to perform its obligations
hereunder;
(c) It has by proper action duly authorized the execution and
delivery of this Agreement and when validly executed and
delivered this Agreement shall constitute a legal, valid and
binding agreement of BANK enforceable in accordance with its
terms; and
(d) The execution and delivery of this Agreement and the
consummation of the transaction herein contemplated does not
conflict in any material respect with or constitute a material
breach or material default under its organizational documents
or under the terms and conditions of any documents, agreements
or other writings to which it is a party.
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1.1 BANK'S AGENT'S REPRESENTATIONS.
BANK'S AGENT represents and warrants that:
(a) It is a corporation validly organized and existing under the
laws of the [STATE JURISDICTION].
(a) It has full power and authority under its organizational
documents and the laws of the [STATE JURISDICTION] to execute
and deliver this Agreement and to perform its obligations
hereunder;
(c) It has by proper action duly authorized the execution and
delivery of this Agreement and when validly executed and
delivered this Agreement shall constitute a legal, valid and
binding Agreement of BANK'S AGENT enforceable in accordance
with its terms; and
(d) The execution and delivery of this Agreement and the
consummation of the transaction herein contemplated does not
conflict in any material respect with or constitute a material
breach or material default under its organizational documents
or under the terms and conditions of any documents, agreements
or other writings to which it is a party.
5.3 ORBIS' REPRESENTATIONS.
ORBIS represents and warrants that:
(a) It is a corporation validly organized and existing under the
laws of the State of Nevada, USA.
(b) It has full power and authority under its organizational
documents and the laws of the State of Nevada, USA, to execute
and deliver this Agreement and to perform its obligations
hereunder;
(c) It has by proper action duly authorized the execution and
delivery of this Agreement and when validly executed and
delivered this Agreement shall constitute a legal, valid and
binding Agreement of ORBIS enforceable in accordance with its
terms; and
(d) The execution and delivery of this Agreement and the
consummation of the transaction herein contemplated does not
conflict in any material respect with or constitute a material
breach or material default under its organizational documents
or under the terms and conditions of any documents, agreements
or other writings to which it is a party.
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ARTICLE 6
MISCELLANEOUS
6.1 ASSIGNMENT. Except as otherwise provided herein, the rights and
obligations of BANK, and BANK'S AGENT and ORBIS under this Agreement
are personal and not assignable by any of the parties, either
voluntarily or by operation of law, without the prior written consent
of the other parties, which consent shall not be unreasonably withheld.
Subject to the foregoing, all provisions contained in this Agreement
shall extend to and be binding upon the parties hereto or their
respective successors and permitted assigns.
6.2 RELATIONSHIP OF PARTIES. Nothing contained in this Agreement shall be
deemed or construed by any of the parties, or by any third party, to
create the relationship of partnership or joint venture between the
parties hereto, it being understood and agreed that neither the method
of computing compensation nor any other provision contained herein
shall be deemed to create any relationship between the parties hereto
other than the relationship of independent parties contracting for
services.
6.3 NOTICE. All notices which any of the parties may be required or desire
to any of the other parties shall be in writing and shall be given by
personal service, telecopy, registered mail or certified mail (or its
equivalent), or overnight courier to any of the other parties at their
respective addresses or telecopy telephone numbers set forth below.
Mailed notices and notices by overnight courier shall be deemed to be
given upon actual receipt by the party to be notified. Notice delivered
by telecopy shall be confirmed in writing by overnight courier and
shall be deemed to be given upon actual receipt by the party to be
notified.
If to BANK
______________________
______________________
Attn: _______________
Telecopy Number: __________
If to BANK'S AGENT
______________________
______________________
Attn: _____________
Telecopy Number: ____________
If to ORBIS
______________________
______________________
Attn: _____________
Telecopy Number: ___________
A party may change its address or addresses set forth above by giving the other
parties notice of the change in accordance with the provisions of this section.
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A party may change its address or addresses set forth above by giving the other
parties notice of the change in accordance with the provisions of this section.
6.4 HEADINGS. The section headings in this Agreement are solely for
convenience and shall not be considered in its interpretation. The
recitals set forth on the first page of this Agreement are incorporated
into the body of the Agreement. The Exhibits referred to throughout
this Agreement are attached to this Agreement and are incorporated into
this Agreement. Unless the context clearly indicates, words used in the
singular include the plural, words in the plural include the singular
and "including" means "including but not limited to".
6.5 WAIVER. The failure of any of the parties at any time to require
performance by any of the other parties of any provisions of this
Agreement shall not affect in any way the full right to require the
performance at any subsequent time. The waiver by any of the parties of
a breach of any provision of this Agreement shall not be taken or held
to be waiver of the provision itself. Any course of performance shall
not be deemed to amend or limit any provision of this Agreement.
6.6 FORCE MAJEURE AND RESTRICTED PERFORMANCE. If performance by any of the
parties of any service or obligation under this Agreement is prevented,
restricted, delayed or interfered with by reason of labor disputes,
strikes, acts of god, floods, lightning, severe weather, shortages of
materials, rationing, utility or communication failures, failure of
MasterCard or VISA, failure or delay in receiving electronic data,
earthquakes, was, revolution, regulation, ordinance, demand or
requirement having legal effect of any government or any judicial
authority or representative of any such government, or any other act or
omission whatsoever, whether similar or dissimilar to those referred to
in this clause, which are beyond the reasonable control of any of the
parties, as the case may be, then any of the parties, as the case may
be, shall be excused from the performance to the extent of the
prevention, restriction, delay or interference.
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6.7 SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable for any reason, the invalidity shall not affect the
validity of the remaining provisions of this Agreement, and the parties
shall substitute for the invalid provisions a valid provision which
most closely approximates the intent and economic effect of the invalid
provision.
6.8 ENTIRE AGREEMENT. This Agreement, including Exhibits, sets forth all of
the promises, agreements, conditions and understandings between the
parties respecting the subject matter hereof and supersedes all
negotiations, conversations, discussions, correspondence, memorandums
and agreements between the parties concerning the subject matter. This
Agreement may not be modified except by a writing signed by authorized
representatives of all the parties to this Agreement. This Agreement
may be executed in any number of counterparts, each of which shall be
deemed an original but all of which together shall constitute one and
the same instrument.
1.9 GOVERNING LAW. This agreement shall be governed by the laws of [STATE
JURISDICTION OF INTERNATIONAL BANK] whose Courts shall have exclusive
jurisdiction in interpretation of the same or in determining any
dispute or matter relating to this agreement.
IN WITNESS WHEREOF, the parties to this agreement have caused it to be executed
by their duly authorize officers as of the day and year first written above.
By:______________________________________
Print Name: _________________________
Its: ________________________________
By: _____________________________________
Print Name: ________________________
Its: _______________________________
By: _____________________________________
Print Name: ________________________
Its: _______________________________
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