LEASING SERVICES AGREEMENT
This Leasing Services Agreement ("Agreement") is entered into by and between
IChargeIt, Inc. ("IChargeIt") with its principal office in Huntington Beach, CA
and Leasing Group, Inc. ("Leasing Group") of Austin, TX. This Agreement and the
terms and conditions set forth herein shall be binding upon both IChargeIt and
Leasing Group.
WHEREAS, ICHARGEIT is a distributor of personal computers and peripheral
components;
WHEREAS, Leasing Group manages leasing programs whereby distributors' customers
can obtain leases through Leasing Group's affiliated third party lessors;
WHEREAS, ICHARGEIT and Leasing Group agree to the following terms and conditions
under which Leasing Group shall provide leasing program services to SOUTHWEST.
1. LEASING SERVICES: Leasing Group agrees to provide management, administration,
and leasing services to establish and maintain a leasing program whereby
customers of ICHARGEIT may enter into reasonable leases for equipment provided
by IChargeIt. This program is referred to herein as the "Leasing Program".
Leasing Group agrees to use its best efforts in establishing and administering
the Leasing Program and in providing the services required thereunder in a
prompt and timely manner in compliance with the terms and conditions of the
Agreement, including the following:
ICHARGEIT will communicate to Leasing Group the names of customers who are
prospects for participation in the Leasing Programs. Leasing Group will then
assist in obtaining the customer's application for a lease agreement, perform
any necessary research concerning the application, and communicate the
application to the appropriate third party lessor. Leasing Group and the third
party lessor's decision to accept or reject the customer's application will be
communicated to ICHARGEIT and, if necessary, the customer as soon as possible.
Upon approval of a lease application, Leasing Group will supervise and
administer the process of preparing the necessary lease documents, transmitting
the documents to the customers for signatures, ensuring the receipt from the
customer of the signed documents and any required initial payments or deposits,
and forwarding the documents and payments or deposits to the third party lessor.
The transmission of documents to and from customers shall be accomplished by an
overnight delivery service or facsimile.
Upon shipment of the equipment subject to a lease, ICHARGEIT shall deliver to
the chosen third party lessor an invoice detailing the products shipped or
delivered to the customer. Delivery of an invoice by ICHARGEIT to the third
party lessor shall constitute warranties and representations by ICHARGEIT that:
a.) the invoice represents a transaction made in the usual course of IChargeIt's
business; in the invoice.
b.) ICHARGEIT has the full and complete title to any products that are the
subject of the lease.
c. The products and/or services that are the subject of the lease are clearly
and accurately described in the invoice.
d.) The invoice correctly states the proper amount for the products and/or
services and any other applicable fees, charges or taxes charged by ICHARGEIT in
connection with the sale of the products to the third-party lessor.
e.) The products have been or will be received by the customer.
f.) ICHARGEIT has disclosed to Leasing Group all material information known to
ICHARGEIT relevant to the sale of the products to the third party lessor and the
lease of the products to the customer.
g.) ICHARGEIT has made no material misrepresentation to the customer concerning
the products or services subject to the lease.
h.) ICHARGEIT has made no warranties or representations to the customer
concerning the products other than those that are contained in IChargeIt's
limited warranty documentation delivered with the products acquired by the
customer.
Leasing Group may assign the warranties and representations set forth in this
subsection to the third-party lessor to whom the invoice is submitted to allow
enforcement of the warranties and representations by the third-party lessor.
If ICHARGEIT has made any incorrect or untrue representations or warranties to
Leasing Group related to a lease, a customer, the equipment, or any other
material factor affecting our decision to conduct our leasing services, or
breach any such representation or warranty, ICHARGEIT agrees to buy back the
lease from the third-party funding source. The buy-back amount shall be an
amount equal to the original lease funding amount, plus any fees that were paid
to Leasing Group by the third-party funding source, and any other fees, costs or
expenses which were paid in connection with funding of the transaction, less the
principal portion of payments which were received from the customer (determined
by using the annual percentage rate which was offered when the purchase took
place), plus any out-of-pocket expenses incurred by us in connection with
collection of such lease. Upon occurrence of any misrepresentation or breach by
ICHARGEIT under this agreement, Leasing Group may elect to rescind any pending
lease approvals (whether given to you or to a Customer, and whether given orally
or in writing).
2. EXCLUSIVITY: During the term of this agreement, Leasing Group shall have the
right of first refusal to provide leasing services through IChargelt. Should
Leasing Group and its third party lessors reject or fail to respond to a lease
application within a reasonable time period, then ICHARGEIT shall be free to
arrange alternative lease arrangements for the customer. Notwithstanding the
foregoing, Leasing Group shall have no right of first refusal in situations
where a customer elects to arrange its own financing.
3. TRADEMARKS, TRADE NAMES AND COPYRIGHTS: Nothing in this agreement shall give
either ICHARGEIT or Leasing Group any ownership interest in any trademarks,
tradenames or copyrights or other intellectual property held by the other party,
nor is any implied or express license
to any ICHARGEIT intellectual property granted by ICHARGEIT herein. Each
party agrees to conduct its business solely in its own name; provided,
however, that ICHARGEIT may use the trademarks and trade names of leasing
Group as necessary in the advertising and promotion of the Leasing Programs.
4. TERMINATION AND RENEWAL: This agreement is to be effective as of the date by
which all parties have signed it and is to remain in effect for a period of 12
months from its effective dates. This Agreement automatically renewed from year
to year until terminated by the parties as provided herein. Either party may
cancel a renewal of this Agreement (including the first such renewal) for cause
or convenience by providing at least ninety (90) days written notice before such
automatic renewal date.
5. ASSIGNMENT. This agreement shall be binding upon and inure to the benefit of
the parties hereto and to their respective successors and assigns, provided,
however, that neither party may assign, delegate, or transfer its performance
obligations hereunder without the written consent of the other party to this
agreement,
6. RELATIONSHIP OF THE PARTIES: This Agreement shall not be constructed as an
agreement of employment, partnership, or joint venture. SOUTHWEST, Leasing Group
and Leasing Group's third-party lessors shall be contractors independent of each
other, and neither party to this Agreement shall have the authority, right or
power to assume, create or incur any obligation, responsibility, or liability,
express or implied, on behalf of any other participant in the Leasing Programs.
7. CONFIDENTIALITY. All confidential documentation and information identified as
such by either party in writing and provided to the other party under this
Agreement.
(Confidential Information) will remain the property of its respective owners.
The parties grant to each other a nontransferable and nonexclusive right to use
Confidential Information, solely in the performance of this Agreement and,
unless prior consent in writing is obtained or disclosure is required by law (in
which case the disclosing party will provide the other party advance notice and
an opportunity to prevent disclosure of such Confidential Information), such
Confidential Information will not be disclose or used for any purpose outside
the scope of this Agreement, except for any part thereof that is known to be
free of any obligation to keep it in confidence or that becomes generally known
to the public through acts not attributable to the party under an obligation to
keep the Confidential Information confidential. All customer lists and account
information of ICHARGEIT shall constitute Confidential Information for purposes
of this Agreement. Each party will keep this Agreement and its terms
confidential, and will make no press release or public disclosure, either
written or oral, regarding the transactions contemplated by this Agreement
without the prior consent of the other party hereto, which consent will not be
unreasonably withheld.
ICHARGEIT understands that Leasing Group will disclose and utilize third party
funding sources for processing IChargeIt's business and ICHARGEIT agrees not to
negotiate or otherwise attempt to establish a direct relationship with these
funding sources unless express written consent by Leasing Group is granted. Such
consent shall not be unreasonably withheld.
8. INDEMNIFICATION. Each party agrees to indemnify and hold harmless the other
for any and all claims and losses, damages, injuries or expenses that are shown
to have been the result of the acts or omissions of the other party or its
agents or employees.
9. FORCE MAJEURE: Neither party shall be responsible for any delay or
failure in performance that results from any cause beyond its reasonable
control.
10. ENTIRETY: This agreement supersedes any and all prior understandings,
agreements, contracts, whether written or oral between the parties or their
predecessors in interest concerning the subject matters set forth herein.
11. SEVERABILITY. If any provision of this Agreement is declared invalid by any
tribunal of competent jurisdiction, then such provision shall be deemed
automatically adjusted to conform to the requirements for validity as declared
at such time, and as so adjusted, shall be deemed a provision of this Agreement
as though originally included herein. In the event that the provision
invalidated is of such nature that it cannot be so adjusted, the provision shall
be deemed deleted from this Agreement as though the provision had never been
included in the Agreement. In either case, the remaining provisions of the
Agreement shall remain in effect.
ICHARGEIT, INC. LEASING GROUP, INC.
8162 Cape Hope, Ste. 201 11000 N. Mopac Expwy. Ste. 300
Huntington Beach, CA 92646 Xxxxxx, XX 00000
By: /s/ Xxxxx Xxxxx By: /s/ Xxxx X. Xxxxxx
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Name: Xxxxxx Xxxxx Name: Xxxx X. Xxxxxx
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Title: CEO Title: Director of Strategic Sales
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Date: 4/5/99 Date: 4/5/99
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