EXHIBIT 10.5
CASHLYNK
MASTER CLIENT AGREEMENT
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THIS AGREEMENT dated a of Sept, 12 2000, is by and between XXXX SYSTEMS,
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INC., a Georgia corporation ("Link"), and Pinnacle, a Nevada corporation (the
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"Client").
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WHEREAS, Xxxx has developed the CashLynk Service (the "Service"), an
electronic fund transfer service that (i) facilitates the transfer of funds
between a company, like the Client, and any employee or other persons who
receive a CashLynk Card (the 'Cad') (such employees and other persons, the
"Cardholders") for participation in the Service, and (ii) provides those
Cardholders enhanced access to their funds, as well as certain other convenient
electronic transaction Services;
WHEREAS, Xxxx makes the Service available to a Client through one or more
programs (each, a and each Program may be tailored to the Clients specific
needs.
WHEREAS, the Service is effected under each of the Programs through the
following arrangement between Xxxx, a designated bank (the Client and it's
Cardholders:
(i) Xxxx xxxx issue a Card to any employee or other persons who
participate in the Service and, if necessary, have agreed to the terms
and conditions of the CashLynk Cardholder Agreement and Disclosure
Statement (the "Cardholder Agreement");
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(ii) The Client will distribute by wire transfer, to an account controlled
by Xxxx at the Bank (the "Client Account"). any wages, bonuses, travel
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and expense reimbursements, incentives, promotional or other funds,
due to the Cardholders;
(iii)Depending upon availability, the Client may subscribe to one or marc
of the following offerings, under the "CashLynk Program" or the
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"Program" which Xxxx will make available to the Cardholders:
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- Automated Teller Machine ("ATM") Services. Cardholders may use
Cards at any ATM that bears the network logo that appears on the
back of the Card to make cash withdrawals or to inquire about the
amount of funds available to them.
- Merchant Point-of-Sale ("PQS") Services. Cardholders may use
Cards to purchase goods and services at any retail or other
establishment that displays the network logo that appears on the
back of the Card.
- Funds Transfer Service. Cardholders may use Cards to transfer any
amount of their available funds to a specified account at a
financial institution.
- Long Distance Telephone Services. Cardholders may us Cards to
make local and long distance telephone calls through a designated
telecommunications service provider.
The Client desires to participate it the Service and Xxxx desires to make
the Service available to the Client and to those Cardholders who elect to
participate in the Service, in accordance with, and subject to the terms and
conditions of this Agreement:
For and in consideration of the mutual covenants and premises set forth
herein, and other good and valuable consideration. the receipt and sufficiency
of which is hereby acknowledged. Xxxx and the Client, intending to be legally
bound, hereby agree as follows:
ARTICLE I
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REPRESENTATIONS, WARRANTIES AND COVENANTS
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Section 1.1, Representations and Warranties of Xxxx.
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Xxxx represents and warrants to, and covenants with, the Client that, as of
the date hereof, and throughout the term of this Agreement, that:
(i) Xxxx is duly organized, validly existing and in good standing
as a corporation under the laws of the State of Georgia and is or will be
qualified to transact business in each jurisdiction where it is required to
be qualified as a foreign corporation, Except where such qualification is
not required or where the failure to be so qualified or remain in good
standing would not have a material adverse effect upon Xxxx or the ability
of Xxxx to perform its obligations hereunder;
(ii) Xxxx has the full corporate power and authority t execute,
deliver and perform this Agreement and to enter into and consummate all
transactions contemplated by this Agreement, and assuming the due
authorization, execution and delivery by the other parties hereto, this
Agreement constitutes a legal, valid and binding obligation of Xxxx.
enforceable against it in accordance with its terms, except as
enforceability may be limited by bankruptcy, conservator ship,
receivership, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and by general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(iii) The transactions contemplated by this Agreement and the
performance by Xxxx of its obligations hereunder arc in the ordinary course
of Lynx's business, and the execution, delivery and performance of this
Agreement and the transactions contemplated herein have been duly approved
by resolutions of the Hoard of Directors of Xxxx or an appropriate and duly
authorized committee thereof, and such resolutions and this Agreement shall
be maintained continuously as official records of Xxxx;
(iv) Neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of Xxxx'x articles of incorporation or by-laws or
any indenture, agreement or instrument to which Xxxx is now a party or by
which it is bound, or constitute a default (whether with notice, the lapse
of time, or both) or result in an acceleration under any of the foregoing,
or result in the violation of any law to which Xxxx is subject;
(v) There is no litigation or other proceedings pending or, to
Xxxx'x knowledge, threatened, which seeks to enjoin or prohibit the
execution, delivery or enforceability of this Agreement, or which questions
the ability of Xxxx to perform its duties and obligations in accordance
with the terms hereof, or which is likely to have a material adverse effect
of the financial condition of Xxxx; and
(vi) No Consent, approval, authorization or order of any
Governmental or regulatory authority is required for the executor, delivery
and performance by Xxxx of or compliance by Xxxx with this Agreement or the
consummation of the transactions contemplated by this Agreement.
Section 1.2. Representations and Warranties of the Client.
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The Client represents and warrants to. and covenants with, Xxxx that, as of
the date hereof, and throughout the ten-n of this Agreement, that:
(i) The Client is duly organized. validly cxislin2 and in good
standing as a recognized business organization under the laws of the State
of Nevada and is or will be qualified to transact business in each
jurisdiction where it is required to he qualified as a foreign business
organization. except where such qualification is not required or here the
failure to he so qualified or remain in good standing would not have a
material advert effect upon the Client or the ability of the Client to
perform it obligators hereunder.
(ii) The Client has the full corporate power and authority to
execute, deliver and perform this Agreement and to enter into and
consummate all transactions contemplated by this Agreement, and assuming
the due authorization, execution and delivery by the other parties hereto,
this Agreement constitutes a legal, valid and binding obligation of the
Client, enforceable against it in accordance with its terms, except as
enforceability may be limited by bankruptcy, conservatorship, receivership,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law;
(iii) The transactions contemplated by this Agreement and The
performance by the Client of its obligations hereunder are in the ordinary
course of the Client's business, and the execution, delivery and
performance of this Agreement and the transactions contemplated herein have
been duly approved by resolutions of the Hoard of Directors of the Client
or an appropriate and duly authorized committee thereof, and such
resolutions and this Agreement shall be maintained continuously as official
records of the Client;
(iv) Neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Client's articles of association, charter
or by-laws or any indenture, agreement or instrument to which the Client is
now a party or by which it is bound, or constitute a default (whether with
notice, the lapse of time, or both) or result in an acceleration under any
of the foregoing, or result in the violation of any law to which the Client
is subject;
(v) There is no litigation or other proceedings pending or, to
the Client's knowledge, threatened, which seeks to enjoin or prohibit the
execution, delivery or enforceability of this Agreement, or which questions
the ability of the Client to perform it$ duties and obligations in
accordance with the terms hereof, or which is likely to have a material
adverse effect on the financial condition of Client, and
(vi) No consent, approval, authorization or order of any
governmental or regulatory authority is required for the execution,
delivery and performance by the Client of, or compliance by the Client
with, this Agreement or the consummation of the transactions contemplated
by this Agreement.
ARTICLE II
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PROGRAM SCHEDULES
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Section 2.1. General.
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With respect to each Program that Client desires to make available to its
employees and/or other persons, Client and Xxxx shall from time to time
establish a Program Schedule, a form of which is attached hereto as Schedule
2.1. Each Program Schedule shall set forth the specific terms and conditions
upon which Xxxx shall make that particular Program available. It is expressly
understood that all Program Schedules shall be executed by Client as a
prerequisite to implementation by Xxxx.
Section 2.2. Amendment.
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Xxxx may (corn time to time and at any time amend the Program Schedule,
including, without limitation, the Cardholder Services nude available
thereunder; provided. however, that Xxxx shall give the Client written notice of
such change(s) thirty (30) days prior to their effective date, and, that, during
such period, the Client may terminate this Agreement.
Section 2.3. Relationship of this Agreement to the Program Schedules.
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Each Program Schedule established between Xxxx and the Client shall be
attached to and incorporated into his Agreement. In the event that the
provisions of an Program Schedule arc inconsistent with The provisions of this
Agreement, the provisions of this Agreement shall govern.
ARTICLE III
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AVAILABILITY AND ENROLLMENT
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Section 3.1. Availability of CashLynk Services to Client's Cardholders
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or Employees
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Client shall notify all of its Cardholders, as well as any other persons to
whom the Client may train time to time desire to offer participation in the
Service (collectively, the "Prospective Cardholders"), of the Client's
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participation in the Service, and the details of the particular Programs for
which the Client has subscribed. The Client shall make available to all of the
Prospective Cardholders the opportunity t enroll and participate in the Service
under one or more Programs.
Section 3.2. Distribution of Enrollment Materials.
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The Client shall, if applicable, deliver to each Prospective Cardholder who
enrolls in a Program a set of instructional materials (the "Enrollment
Materials") for the Program in which the Prospective Cardholder elects to
participate. The Enrollment Materials may include, without limitation, the
Cardholder Agreement. which includes the Cardholder Services Fee Schedule (as
defined below), a Card, a Direct Deposit Authorization Form and other materials
as required.
Section 3.3, Enrollment or Participation
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The Client understands and agrees that with respect to payroll funds
distributed through a Program, the federal Electronic Fund Transfer Act,
together with Regulation E ("Regulation E") of The Board of Governors of the
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Federal Reserve System (the Federal Reserve"), prohibits any person from
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requiring an employee or Cardholder to establish an account for electronic fund
transfers as a condition of employment. The Client shall be responsible for
ensuring that, with respect to each Prospective Cardholder who elects to
participate in a Program: (i) in the case of distribution of payroll funds such
election is voluntary; (ii) such Prospective Cardholder has received a complete
set of the Enrollment Materials and has been given the opportunity to ask
questions of the Client and of Xxxx regarding participation in the Program; and
(iii) such Prospective Cardholder has properly read Enrollment Materials.
Section 3.4. Responsibility for Enrollment Materials.
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The Client shall maintain and, store securely all Enrollment Materials,
including inventories of Cards prior to their distribution and shall be
responsible for the cost of replacing any Enrollment Materials and Cards that
have been tampered with, destroyed, misused, or compromised in any way. The
Client shall notify Xxxx immediately by telephone or facsimile of any lost,
misplaced or stolen Enrollment Materials and shall be responsible for the
unauthorized or fraudulent use thereof until such time as Xxxx receives such
notification. The Client understands and acknowledges that any use or'
reproduction of Network , VISA or MasterCard marks must be in strict compliance
with applicable standards therefore and that Client must obtain the written
approval of Xxxx prior to any USE thereof. Client further agrees to indemnify
and save Xxxx harmless against any fines, claims or actions involving Client's
unauthorized or non-compliant use of such marks
Section 3.5. Initial Regulation E Disclosures.
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Xxxx shall be responsible for ensuring that The Enrollment Materials,
including, without limitation, the Cardholder Agreement and Disclosure (Exhibit
A" hereto), comply, in all material respects, with the disclosure requirements
of Regulation E relating to initial disclosures.
ARTICLE IV
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THE CLIENT ACCOUNT
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Section 4.1. Maintenance of Client Account at Bank.
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Client shall, at all times during the effectiveness of this Agreement.
maintain a deposit account (the "Client Account") at a bank designated by Xxxx
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(the "Bank"). which initially shall be Palm Desert National Bank. Paint Desert,
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California. Xxxx will assist the Client in establishing the Client Account and
notifying the Client of the account number and any other information Necessary
fur the Client to wire funds to such account.
Section 4.2. Relocation of the Client Account.
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In the event that Xxxx elects to provide Services through another financial
institution , Xxxx may require that Client relocate the Account at such new
bank: provided , however that Xxxx shall provide written notice to the Client
thirty (30) days prior to the effective date of such change, which notice shall
set forth, (i) the identity of the new bank, (ii) the new account information
and wiring instructions for delivering funds to the new bank. (iii) and the
effective date of the change at which time the client shall commence depositing
all funds to such new account at the bank.
Section 4.3. No Interest.
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No interest shall be payable to the Client or the Cardholders with respect
to funds held in the Client Account on their behalf, and, to the Extent that any
interest, credits or other benefits are earned or received in respect of funds
held in the Client Account, Xxxx or the Bank shall be entitled thereto.
ARTICLE V
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DEPOSITS TO THE ACCOUNT
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Section 5.1. Initial Deposit; Reserve Fund.
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Client shall deposit to the designated Client Account, via irrevocable wire
transfer, an initial deposit set forth On the Program Schedule as "reserve
funds" (the 'Reserve funds"). The Reserve Funds shall be held in the Client
Account to cover potential overdrafts and network obligations resulting from
network "stand-in" transactions, fee obligations resulting from additional
unforccasted transaction volume on Cards, and for any other obligation to Xxxx
created by a Program, its termination or other events, and Xxxx is hereby
granted a right of set-off to apply any Reserve Funds to any unpaid obligations
of Client to Xxxx.
In the event that Xxxx applies, or exercises any right of set-off against,
the Reserve Funds, Xxxx shall, within five (S) business days notify the Client
of the reason for, and the amount of. such application. Within two (2) business
days of such notification, the Client shall re-deposit to the Client Account,
via wire transfer, an amount of funds necessary to restore the Reserve Fund to
its required level.
Section 5.2. Regular Deposits.
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The Client shall promptly deposit in the designated Client Account, by
timely. u-revocable win transfer, all Program funds due to its Cardholders,
including without limitation, wages, salaries, bonuses, reimbursements,
incentives, promotional funds and estimated client paid fees. With respect to
each transfer of funds by the Client to Client Account. Client shall deliver to
Xxxx in the specified format, as Set forth in the Program Schedule, data
identifying the amount of such funds attributable to each Cardholder
("Disbursement Detail").
Client acknowledges that Cardholders shall have access only to those funds
held in the Client Account on their behalf, and that the Service under a Program
will be made available to them only to the extent that adequate funds arc
available in the Client Account. Xxxx shall be liable to Cardholders only to the
extent that Client funds for such Cardholders have been advanced to the Client
Account and Client has provided Disbursement Detail to Xxxx. Xxxx shall have no
obligation to provide the Service, or to make any funds available, to
Cardholder's with respect to whom 'inadequate funds are held in the Client
Account or for whom Disbursement Detail is not delivered by Client.
Section 5.3. Maintenance of Subaccount Entries for Each Cardholder.
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The Client Account shall be controlled by Xxxx exclusively on behalf of all
Cardholders, and Xxxx shall maintain individual entries in its system reconciled
to amounts in the Client Account for each Cardholder. ("Subaccount") It is the
responsibility of the Client to provide confidential Cardholder information,
such as Cardholder name and other individual Subaccount information needed for
these records. Each such Subaccount entry shall accurately reflect the amount of
funds in the Client Account that are attributable to, and held on behalf of.
each particular Cardholder.
Section 5.4. Employee Payroll and Other Matters.
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The Client shall be solely responsible for compliance with all federal,
state and local laws, rules and regulations relating to payroll, compensation
and employment matters, including, without limitation, (i) proper withholding,
and timely remittance of. any and all taxes related thereto, and (ii) the timely
delivery of payment stubs and similar payroll information to Cardholders setting
forth all required information.
Section 5.5. Withdrawal.
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Xxxx shall have sole authority to withdraw the Reserve Funds or any other
funds from the Client Account.
ARTICLE VI
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CARDHOLDER SERVICES
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Section 6.1, Cardholder Services Schedule.
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With respect to each Program. Xxxx shall prepare a Cardholder Services
Schedule (the "Cardholder Services Schedule"). which sets forth the services
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(the "Cardholder Services") that Xxxx, with the cooperation of the Client, will
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make available to the Cardholders under that particular Program. The Cardholder
Services Schedule shall be attached to, and made a part of, the related Program
Schedule.
Section 6.2. Fees for Cardholder Services.
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The fees for the Cardholder Services, at the discretion of the Client and
outlined in the Program Schedule, may be borne by the Cardholders in the course
of their use of the Cardholder Services, in accordance with the terms and
conditions of the Cardholder Agreement and Disclosure,
Section 6.3. Availability of Cardholder Services.
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The Services are available to the Cardholders only upon the terms and
conditions set forth in the Cardholder Agreement and Disclosure, and only to the
extent that the Cardholder has available in the Reserve Funds Account an amount
of funds sufficient therefor and Disbursement Detail has been provided to Xxxx
by Client.
ARTICLE VII
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CLIENT RESPONSIBILITIES
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Section 7.1. Provide Cardholders with Enrollment Materials.
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The Client shall deliver to each Cardholder that enrolls in the respective
Program(s) a set of instructional materials ("Enrollment Materials"), pursuant
to Section 3.2. hereof, and a Welcome Kit for the Program in which the
Cardholder has elected to participate. The Enrollment Materials and Welcome Kit
will include the Cardholder Agreement and Disclosure, the Cardholder Services
Schedule, a Card, Instructional Information on the use of the Card and a Direct
Deposit Authorization Form (if applicable).
Section 7.2. Comply with PIN Procedures.
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The Client shall comply with Xxxx procedures regarding PIN issuance and
enrollment materials and take all reasonable precautions so that the only
persons with appropriate authority learn or handle such PINs.
Section 7.3. Assistance in Notifying Cardholders of Chances
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To the extent that Xxxx amends the Cardholder Service Schedule, the Client
shall be responsible for distributing proper and timely notification of such
amendments to the Cardholders through an Amended Cardholder Agreement and
Disclosure.
Section 7.4. Comply with All Laws
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The Client shall comply with all federal, stare and local wage and labor
laws, payroll statutes and any other laws and regulations applicable to the
Service.
ARTICLE VIII
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PERIODIC STATEMENTS
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Section 8.1. Preparation and Delivery of Statements; Compliance with
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Regulation E.
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In accordance with Regulation X. Xxxx shall prepare and provide periodic
statement information in a form consistent with requirements for such statements
(the Statements") for all Cardholders. Xxxx shall be responsible for ensuring
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that data in each of the Statements complies with the disclosure requirements of
Regulation E: provided. however, that, in preparing such disclosures Xxxx shall
rely upon the information provided by the Client.
Section 8.2. Delivery of Statements to the Client.
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Xxxx shall deliver the Statement to the Client via one or more of the
following methods, upon which Xxxx and the Client shall have mutually agreed:
(i) Electronic Mail: Data Transfer. Xxxx shall deliver the Statements to
the Client via electronic mail, electronic data transfer, or other
electronic means. The Client shall bear the responsibility for
printing the Statements to paper form and delivering them to the
Cardholders in a timely manner.
(ii) Internet Website. Xxxx shall make the Statements available via a
secure Internet website maintained by Xxxx, and in a format that may
easily be printed into paper form. The Client shall access the
website, print the Statements to paper form and deliver them to the
Cardholders in a timely manner, or otherwise at the request of each
Cardholder under their Cardholder Agreement, the Client shall allow
the Cardholder to access their own Statement via the use of their
Personal Identification Number ("PIN").
(iii)Paper Form. Xxxx shall deliver the Statements to the Client in
printed. paper form. The Client shall be responsible for delivery of
the Statements to the Cardholders in a timely manner.
In all cases, the Client shall be responsible for ensuring the timely
delivery of the Statements to the Cardholders, and the Client shall indemnify
and hold Xxxx harmless against any liabilities, damages, expenses or claims
which may arise as a result of the Client's failure to timely deliver the
Statements.
ARTICLE IX
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PROGRAM FEES
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Section 9.1. General.
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Each Program Schedule shall set forth the fees due from Client to Xxxx
under such Program, which may include, without limitation, (i) initiation fees,
such as start-up, training, data conversion, set-up, travel or other similar
expenses, and (ii) monthly service fees. The Client shall promptly pay Xxxx the
fees due under any Program Schedule by wire transfer to the account.
ARTICLE X
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TRANSACTION DATA PRIVACY
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Section 10.1. Ownership of Certain Property.
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The Service, Programs. Cards, Card numbers, PINs, and the intellectual
property related to the operation and functionality of such items and processes,
as well as their relationship to, and interaction with, the Services, are the
sole property of Xxxx. The Client shall not use, divulge, or grant any third
party access to any of the foregoing intellectual and other property, except:
C:) as permitted under the Client Privacy Policy Statement (as defined below),
(ii) as may be necessary to conduct its internal business. (iii) as may be
required by law, or (iii) with the prior express written consent of Xxxx.
The Cardholders' transaction information, including, without limitation,
the information presented in the statements, is the property of the respective
Cardholders. Neither Xxxx nor the Client shall use, divulge, or grant my third
party access to, any such information, except: (i) as permitted under the Xxxx
Privacy Policy Statement (as defined below) or the Client Privacy Policy
Statement, respectively, or (ii) as may he required by law.
Section 10.2. Xxxx Privacy Policy Statement.
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Xxxx has approved and adopted a privacy policy statement, which is
maintained and documented on the Xxxx Web Site (which may be accessed at
http:\\xxx.xxxxxxxxxxx.xxx) (the "Xxxx Privacy Policy Statement"), and, in the
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course of performing its obligations under this Agreement. Xxxx shall at all
times comply with the Xxxx Privacy Policy Statement.
Section 10.3. Client Privacy Policy Statement.
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Within thirty (3O) days from the effective date of this Agreement. the
Client shall have approved and adopted a privacy policy Statement, in
substantially the form attached hereto ("Client Privacy Policy Statement"). and,
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in the course of performing its obligations under this Agreement, the Client
shall at all times comply with the Client Privacy Policy Statement.
ARTICLE XI
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CONFIDENTIALITY: NON-COMPETITION
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Section 11.1. Confidentiality.
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Xxxx and the Client shall not, during the performance of this Agreement, or
at any time after the termination or expiration hereof, sell or disclose to any
third party, other than as may be required in the performance of their duties
and obligations hereunder or as may be required by law, the terms of this
Agreement or arty of the procedures, practices or confidential dealings of and
between each other.
Section 11.2. Non-Competition.
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All information received by Xxxx and the Client with respect to the
business of the other (other than information which is or, not as a result of
Client's actions, becomes, a matter of public knowledge) shall not at any time
be used for any business or competitive purpose Or be disclosed by such person
to any third parties without the prior express written consent of the other
party.
Section 11.3. Survival.
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The covenants and agreements set forth in this Article X shall survive the
consummation of the transactions contemplated by this Agreement.
ARTICLE XII
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TERM AND TERMINATION
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Section 12.1. Term.
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The term of this Agreement shall commence as of the date first set forth
above and shall continue thereafter until the first anniversary of such date.
Thereafter, this Agreement shall automatically renew for consecutive. successive
terms of one (1) year each, unless and until either party hereto provides the
other party written notice of non-renewal ninety (90) days prior to the end of'
the then existing term.
The term of each Program under this Agreement shall be governed by the
provisions of the applicable Program Schedule.
Section 12.2. Termination.
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This Agreement may be terminated in any of the following manners:
(i) Mutual Termination. This Agreement may be terminated at any time by
the mutual written agreement of both parties.
(ii) Termination by Non-Renewal This Agreement may be terminated by either
party by written notice of non-renewal in accordance with the
provisions of Section 12.1 hereof.
(iii)Event of Default. if arty one or more of the following events (each,
an "Event of Default") shall occur and be continuing:
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- the failure of a party to remit any payment required by this
Agreement, which continues unremedied for longer than two (2) business
days after written formal notification
- the failure of a party to observe or perform, in any material respect
any other of the covenants, obligations or agreements set forth in
this Agreement. which failure is not cured within thirty (30) days
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given:
- a decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a trustee. conservator, receiver
or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings. or for the winding-up
or liquidation of its affairs. shall have been entered against a party
hereto and such decree or order shall have remained in force.
undischarged or unstayed for a period of 60 days:
- the Consent by a party to the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings relating to all or
substantially all of such party's property: or
- a party admits in writing its inability to pay its debts as they
become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its
obligations.
then, and in each and every such case, so long as an Event of Default shall
not have been remedied, the non-defaulting party, by notice in writing to
the party in default, may. in addition to whatever rights the
non-defaulting party may have at law or equity to damages, including
injunctive relief and specific performance, terminate this Agreement.
Section 12.3. Unwinding Relationship.
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Upon termination of this Agreement, the parties shall cooperate with each
other to facilitate the termination of their relationship under this Agreement.
Without limiting the generality of the foregoing, the parties shall cooperate to
notify the Cardholders, the Bank, and any other third parties concerning which
the parties hereto may mutually agree. In the event that this Agreement is
terminated pursuant to an Event of Default. then the parry in default shall bear
the cost of any conversion or other expenses related to such termination. If
this Agreement is terminated for any other reason, then the parties hereto shall
share the cost of any conversion or other expenses related to such termination.
ARTICLE XIII
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DISPUTES
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Section 13.1. Duty to Notify.
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In the event of any dispute, controversy, or claim arising out of or
relating to this Agreement or The construction, interpretation, performance,
breach, termination, enforceability or validity thereof (hereinafter, a
'Dispute"), the party raising such Dispute shall notify the ocher within thirty
(30) days from the date of its discovery of the Dispute. In the case of a
Dispute relating to invoices, billing statements or similar matter, the failure
of a party to notify the other party of such Dispute within thirty (30) days
from the date of its receipt shall result in such invoice, billing statement or
similar matter being deemed undisputed and accepted by party attempting to raise
such Dispute.
Section 13.2. Cooperation to Resolve Disputes.
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The parties shall cooperate and attempt in good faith to resolve any
Dispute promptly by negotiating between persons who have authority to settle the
Dispute and who arc at a higher level of management than the persons with direct
responsibility for administration and performance of the provisions or
obligations of this Agreement that are the subject of the Dispute.
Section 13.3. Arbitration.
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Arty Dispute which cannot otherwise be resolved as provided in Section 12.2
shall be resolved by arbitration conducted in accordance with the commercial
arbitration rules of the American Arbitration Association ("AAA") and judgment
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upon the award rendered by the arbitration tribunal may be catered in any court
having jurisdiction thereof. The arbitration tribunal shall consist of a single
arbitrator mutually agreed by the parties, or in the absence of such agreement
within 30 days from the first referral of the dispute to the AAA. designated by
the AAA. The place of arbitration shall be Atlanta, Georgia. unless the parties
shall have agreed to another location within 15 days from the first referral of
the dispute to the AAA. The arbitration award shall be final and binding. The
parties Waive any right to appeal the arbitration award, to the extent a right
to appeal may be lawfully waived. Each party retains the right to seek judicial
assistance: (I) to compel arbitration: (ii) to obtain interim measures of
protection prior to or pending arbitration; (iii) to seek injunctive relief in
the courts of any jurisdiction as may be necessary and appropriate to protect
the unauthorized disclosure of its proprietary or confidential information. and
(iv) to enforce any decision of the arbitrator, including die final award.
Section 13.4. Confidentiality.
-------------- ---------------
The arbitration proceedings contemplated by this Section shall he as
confidential and private as permitted by law. To that end. the parties shall not
disclose the existence. content or results of any proceedings conducted in
accordance with this Section, and materials summoned in connection with such
proceedings shall not he admissible in any other proceeding, provided. however,
that this confidentiality provision shall not prevent a petition to vacate or
enforce an arbitral award. and .shall not bar disclosures required by .any laws
or regulations.
ARTICLE XIV
-----------
LIMITATION OF LIABILITY: INDEMNIFICATION
----------------------------------------
Section 14.1. Limitation of Liability.
-------------- -------------------------
Neither Xxxx, the Client nor any of their respective directors, officers,
employees Or agents shall be under any liability for any action taken, or for
refraining from the taking of any action in good faith pursuant to this
Agreement; provided, however, that this provision shall not protect Xxxx, the
Client or any such person against any breach of their respective
representations, warranties or covenants made herein, or against arty specific
liability imposed pursuant hereto, or against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations or duties hereunder. Xxxx, the Client and any of Their respective
directors, officers, employees or agents may rely in good faith on any document
of any kind which, prima fade, is properly executed and submitted by any
appropriate person respecting any matters arising hereunder.
Section 14.2. Indemnifications.
-------------- ----------------
Each party together with their respective directors, officers, employees or
agents shall be indemnified and held harmless by the other party against any
loss, liability or expense incurred in connection with any actions, proceedings
or investigations (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
arising out of the indemnifying party's failure to perform its obligations under
this Agreement, other than any loss, liability or expense incurred, in part or
in whole, by reason of the indemnified party's willful misfeasance, bad faith or
gross negligence in the performance of its duties hereunder or by reason of the
indemnified party's reckless disregard of its obligations or duties hereunder.
Notwithstanding the foregoing, neither party shall be responsible under this
indemnification for consequential, incidental, special or punitive damages, even
if the indemnifying party had prior knowledge of the possibility of
the same.
ARTICLE XV
----------
MISCELLANEOUS
-------------
Section 15.1. Warranties; Limitation on Liability.
-------------- --------------------------------------
LYNX MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO
ANY SERVICES, PRODUCTS OR EQUIPMENT PROVIDED HEREUNDER, INCLUDING, WITHOUT
Limitation, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. LYNKS SOLE Responsibility TO THE CLIENT AND THE CARDHOLDERS SHALL BE TO
MAKE THE SERVICE AVAILABLE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND
THE CARDHOLDER AGREEMENT. IN NO EVENT SHALL XXXX BE LIABLE TO THE CLIENT, ANY
CARDHOLDER OR ANY OTHER FIRM OR PERSON FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR
PUNITIVE DAMAGES, EVEN IF XXXX HAD PRIOR KNOWLEDGE OF THE POSSIBILITY OF SAME.
Section 15.2 Escheatment
------------- -----------
Client assumes full responsibility for rite escheatment of any unclaimed
funds and for required local procedures appropriate to the individual States in
which employees reside.
Section 15.3. Force Majeure.
-------------- --------------
Neither party hereto shall be liable for any failure to perform its
obligations under this Agreement due Lu: (i) acts of God, such as fires. floods,
electrical storms, unusually severe weather and natural catastrophes: (ii) civil
disturbances, such as strikes and riots: (ii) acts of aggression, such as
explains. wars, and terrorism; (iv) failure of any third party service providers
to adequacy provide such services including, without limitation ATM network
services, the Bank's services. telecommunication services, and merchant POS
services: (v) failure or fluctuations in electrical power, heat. light. air
conditioning. computer or telecommunication services or equipment: and (iv) acts
of government, including, without limitation, the actions of regulatory bodies
which significantly inhibit or prohibit either party from performing their
obligations under this agreement (*each a "Force Majeure") In such event the
performance of such parties obligations shall be suspended during the period of
existence of Force Majeure and the period reasonably required thereafter to
resume the performance of the obligation. The parties shall use their best
reasonable efforts to minimize the consequences or Force Majeure.
Section 15.4. Governing Law.
-------------- --------------
This Agreement shall be construed in accordance with the laws of the State
of Georgia and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws without regard to conflicts of
law or choice of law principles.
Section 15.5. Notices.
-------------- -------
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered at or titled by
registered mail, postage prepaid. to:
(a)in the case Xxxx: (b) in the case of the Client:
Xxxx Systems. Inc.
000 Xxxxxx Xxxxx Xxxx ___________________________
Xxxxxxx, Xxxxxxx 00000 ___________________________
Attention: General Counsel Attention:_________________
Telephone: (000) 000-0000 Telephone:(___)________-________
Facsimile: (7?O) 396-8431 Facsimile:(___)________-________
Section 15.6. Severability of Provisions.
-------------- ----------------------------
If any one or more of the covenant's, agreements, provisions or terms of
This Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions, or terms shall be deemed servable from the
remaining covenants, agreements, provisions, or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement.
Section 15.7. Waivers.
-------------- -------
No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the parry against whom
such waiver or modification is sought to be enforced. Any failure to insist
upon strict compliance with any of the terms or conditions of this Agreement
shall not be deemed a waiver of such term or condition, nor shall any waiver or
relinquishment of my right or power hereunder at any time or times be deemed a
subsequent waiver or relinquishment o such right or power.
Section 15.8. Counterparts.
-------------- ------------
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed, shall be deemed to be an original, and all such counterparts shall
constitute one and the same agreement. An executed facsimile copy of this
Agreement is sufficient to evidence this Agreement and the effectiveness hereof.
Section 15.9. Schedules and Exhibits.
-------------- ------------------------
The Schedules and Exhibits to this Agreement, as amended and in effect from
the time of such amendment until subsequent amendment thereto, if any, are
hereby incorporated and made a part hereof and are an integral part of this
Agreement.
Section 15.10. Entire Agreement.
--------------- -----------------
This Agreement, including the Exhibits and Schedules hereto, Constitutes
the entire agreement between the parties with respect to the subject matter
hereof, and supersedes all prior or contemporaneous agreements and
understandings regarding the subject matter hereof, whether written or verbal.
This Agreement may be modified or amended only in writing signed by the parties
hereto.
Section 15.11. Effect of Headings and Recitals.
--------------- -----------------------------------
The Section and paragraph headings herein, as well as the recitals and
preamble that precede the material provisions of this agreement. are for
convenience only and shall not affect the construction hereof.
Section 15.12. No Third-Party Beneficiaries.
--------------- ------------------------------
This Agreement is not intended, and shall not be construed to, confer any
rights upon any shareholder, creditor. partner or joint venture of the Bank or
Xxxx (except to the extent any such persons or entities may be indemnified
hereunder), or any other person or entity, whether as third party beneficiaries
or otherwise, against any party hereto or their respective directors, officers.
agents, employees, representatives, affiliates or controlling persons. The Dank
and Xxxx acknowledge and agree that they are contracting with each other on an
arm 's-length basis, and this Agreement is not intended to create, and shall not
create, or constitute the parties hereto as partners or joint ventures.
Section 15.13. Non-Exclusivity.
--------------- ---------------
The Client: understands and agrees that Xxxx'x relationship with the Client
under this Agreement is non-exclusive, and that Xxxx may at any time establish
similar relationships with one or more other parties for similar or any other
purposes.
Section 15.14. Amendment.
--------------- ---------
This Agreement may be amended from time to time only by a writing signed by
the Xxxx and the Client.
Section 15.15. General Interpretive Principles.
--------------- ---------------------------------
For purposes of this Agreement, except as other-wise expressly provided or
unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender;
(b) references herein to "Articles," Sections," "Subsections,"
"Paragraphs" and other subdivisions without reference to a document arc
to designated Articles, Sections, Subsections, paragraphs and other
subdivisions of this Agreement;
(c) reference to a subsection without further reference to a
Section is a reference to such subsection as contained in the same Section
Which the reference appears, and this rule shall also apply to paragraphs
and other subdivisions;
(e) the words Therein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and riot to any
particular provision;
(f) the terms "include" or "including" or any derivation thereof
shall mean without limitation by reason of enumeration; and
(g) the cover page, table of contents, headings and subheadings
hereof have been provided for convenience of reference only and are
riot intended to and shall not. affect the construction or interpretation
of this Agreement.
Section 15.16. Successors and Assigns.
--------------- ------------------------
This Agreement shall be binding upon and shall inure to the benefit of the
parties and their successors and permitted assigns. Xxxx may transfer or assign
this Agreement upon thirty (30) days written notice to the Client. The Client
shall not transfer or assign this Agreement without the prior express written
consent of Xxxx. such consent not to be unreasonably withheld.
TN WITNESS WHEREOF, Xxxx and the Client have caused this Agreement to be
duty executed by the respective officers thereunto duly authorized as of the day
and year first above written.
XXXX SYSTEMS, INC. THE CLIENT
By: By: /s/ Xxxxxx X Xxxxxxx
---------------------------- ----------------------------
Name: Name: Xxxxxx X Xxxxxxx
---------------------------- ----------------------------
Title: Title: V.P.
---------------------------- ----------------------------
Date: Sept 28, 2000 Date: Sept 12, 2000
---------------------------- ----------------------------
