EXHIBIT 10.12
INTERCEPT
GENERAL MARKETING AGENT AGREEMENT
INTERCEPT SYSTEMS, INC., a Georgia Corporation ("Servicer") and the undersigned
("Agent"), in consideration of their obligations in this Agreement and intending
to be legally bound, agree as follows:
1. Definitions: For purposes of this Agreement:
a. "End-User" shall mean, an end-user bank or savings bank that meets the
qualifications and criteria applicable to such offering establishment by
servicer for solicitation by Agent from time to time.
b. "Master Electronic Funds Transfer Services Agreement" shall mean the
contract in the form, and containing the terms and conditions (including
price and payment terms), established by Servicer from time to time for the
electronic funds transfer ("EFT") services provided to an End-User.
c. A Master Electronic Funds Transfer Services Agreement shall be "obtained
from an End-User" if, and only if, (1) the End-User is located within the
Territory; and (2) the Master Electronic Funds Transfer Services Agreement
has been executed by an authorized representative of the End-User.
d. "Territory" shall mean the states or locations identified on Exhibit "A"
hereto.
e. "Term" shall mean that period commencing on the date hereof and lasting for
a period of twelve complete months and any subsequent twelve month renewal
period.
2. Appointment: Subject to the terms of this Agreement, Servicer engages
Agent to solicit End-Users to enter into Master Electronic Funds Transfer
Services Agreements with Servicer for Its EFT services. Agent may solicit End-
Users only with respect to their proposed installation and use of the EFT
services in the Territory. Servicer reserves the right, to change the terms and
conditions of its Master Electronic Funds Transfer Services Agreement at any
time, and Servicer agrees to provide 30 days notice to Agent of any substantive
change. Agent acknowledges that this Agreement does not confer on Agent
exclusive rights in any other territory. Agent represents and warrants to
Servicer that it has the authority to enter into this Agreement and to perform
its terms fully.
3. Nature of Relationship: Agent shall be an independent contractor. Nothing
in this Agreement shall be construed to create any other relationship. Agent is
hereby advised that, as an independent contractor, it has certain
responsibilities under the federal and state tax laws.
4. Responsibilities of Agent: The duties of Agent shall be to:
a. Use its best efforts to solicit End-Users to enter into Master Electronic
Transfer Services Agreement;
b. Conduct its business so as to maintain and increase the goodwill and
reputation of Servicer;
c. Pay all expenses incurred by Agent in the performance of its duties under
this Agreement, including (1) dues and fees for membership in any local,
state, or national trade association or attendance at seminars or
conventions; (2) local and long distance transportation expenses; and (3)
expenses in connection with the solicitation of End-Users and the operation
of Agent's business, including telephone, delivery, entertainment, and
promotional expenses; and
d. Use only promotional material mutually agreed upon for purposes of
promotion of the Servicer's business.
5. Limits of Authority: Agent shall not, without prior written approval from
an authorized representative of Servicer, take any of the following actions:
a. Incur any expense or obligation in the name of the Servicer;
b. Disseminate any printed material regarding the Licensed Products or
Servicer's business; or
c. Use Servicer's advertising and promotional guidelines.
6. Payment of Commissions: Agent shall be compensated by Servicer for its EFT
services solely on the basis of commissions earned on any Master Electronic
Funds Transfer Services Agreements for End-Users located within the Territory.
Commissions shall be set forth in a Commission Schedule attached hereto as
Exhibit "B". The payment of any commissions to Agent shall be subject to all of
the terms and conditions of this Agreement.
7. Statements: Servicer shall mail Agent a monthly statement showing
commissions earned. At no time shall Servicer be obligated to reimburse Agent
for any expenses unless it agrees to do so in writing.
8. Sales Support: Servicer shall provide sales support to agent including
promotional materials and sales representative in Territory as reasonably
required by agent.
9. Voluntary Termination: Prior to completion of the initial Term or any
renewal Term, either Servicer or Agent may terminate this agreement at any time
without cause by giving the other party one hundred twenty days prior written
notice. The payment of commissions shall continue through the term of any
Master Electronic Funds Transfer Service Agreement entered into pursuant to this
Agreement between Servicer and an End-User in the event of any termination other
than involuntary termination by either party.
10. Involuntary Termination: Either party may terminate this Agreement
immediately, without notice to either party for just cause. A termination shall
be deemed "for just cause" if the other party:
a. Breaches any provision of this Agreement;
b. Violates any law or regulation; or
c. Commits any willful or dishonest act that could injure the other party.
11. Confidentiality: Agent acknowledges that Servicer has a proprietary
interest in the association of its agents and personnel and the business of the
customers with whom such agents and personnel interact. Accordingly, Agent
shall provide Servicer with the full benefit of all work and contacts relevant
to the business of Servicer throughout the term of this Agreement. Agent shall
maintain in strict confidence, and shall not use or disclose except to its
regulatory authorities, as required by law or legal process, and as required to
perform its duties for Servicer, all Trade Secrets of Servicer. This obligation
shall apply during and after the term of this Agreement for so long as the
pertinent information or data remain Trade Secrets, and shall apply regardless
of whether the Trade Secrets are in written or tangible form. For purposes of
this Agreement, a Trade Secret is defined to consist of legally protected rights
in confidential information. Without limiting the generality of the foregoing,
Trade Secrets of Servicer include nonpublic information regarding the Servicer,
account invoices, training and educational manuals, administrative manuals, and
prospective customer leads developed by Servicer regardless of whether computer
or electronically accessible "on-line". However, Trade Secrets do not include
information Agent possesses or acquires independently of Agent's activities or
duties as an agent of Servicer. The foregoing obligation shall continue to
apply for two years after termination of this Agreement.
12. Return of Materials: Upon the request of Servicer and, in any event, upon
the termination of Agent's engagement, Agent shall deliver to Servicer all
memoranda, notes, records, drawings, manuals, disks, or other documents and
media pertaining to Servicer's business or Agent's activities or duties as a
Servicer agent, including all copies, extracts, summaries, and analyses thereof.
This obligation shall not apply to publicity distributed documentation, or
internal business or personal records of Agent's own creation that do not
contain Servicer Trade Secrets.
13. Remedies: In the event of any breach by either party identified in Section
10 of this Agreement, the resulting injuries to the other party would be
difficult or impossible to estimate accurately, but it is certain that injury or
damages will result to the business of the other party. Both parties agree
that, in the event of any such breach, the non-breaching party shall be
entitled, in addition to any available legal or equitable remedies or damages,
to an injunction to restrain the violation or anticipated violation thereof.
Should the non-breaching party have any basis to seek such legal or equitable
action, the breaching party shall pay any and all attorney fees and court costs
that the other party may incur. The non-breaching party's rights under this
section shall be in addition to every other remedy (equitable, statutory, legal
or contractual) to which the non-breaching party may be entitled.
14. Miscellaneous: No assignment by Agent or Servicer of this Agreement or any
commissions due hereunder shall be valid unless approved in advance by an
authorized officer of Servicer or Agent, as the case may be. No modification or
waiver of any provision of this Agreement shall be binding on Servicer unless
made in writing and signed by an authorized officer of Servicer. This Agreement
is governed by the laws of the State of Georgia as it
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applies to a contract executed, delivered, and performed in such state. This
Agreement supersedes and replaces any agreement previously entered into between
Agent and Servicer. Servicer's failure to enforce any provision of this
Agreement shall not constitute a waiver of any provision of this Agreement. The
provisions of this Agreement shall be deemed severable. In the event that any
provision of this Agreement is determined to be unenforceable or invalid, such
provision shall nonetheless be enforced to the fullest extent permitted by
applicable law, and such determination shall not affect the validity and
enforceability of any other remaining provisions of this Agreement. This
Agreement, together with all schedules attached hereto and all writings
incorporated herein by reference, constitutes the entire agreement between Agent
and Servicer with respect to the subject matter of this Agreement.
SERVICER: INTERCEPT AGENT:
By:_________________________________________ By:___________________________
Title: President and CEO Title:
Date: Date:
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EXHIBIT A
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[Territory]
EXHIBIT B
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[Commission Schedule]
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