EXHIBIT 10(J)
CHECK CENTRAL, INC.
0000 XXXXXXX XXX XXX
XXXXX X
XXXXXXXXX, XX 00000
(000) 000-0000
DISTRIBUTOR AGREEMENT
This Independent Distributor Agreement (the "Agreement") is entered
into effective as of December 1, 1999 by and between Check Central, Inc.
(hereinafter "CCI") a Nevada Corporation and, ACS Electronic Commerce Group, an
Independent Distributor (hereinafter "Distributor"), a Delaware corporation with
reference to the following recitals of essential facts.
RECITALS
A. CCI is engaged in the manufacture, assembly and sales of that certain
product more particularly described on Exhibit A attached hereto and
incorporated by reference herein (the "Product" or the "Machine") and
accessories, special parts and replacement parts and software and
programming for such Product which are used in connection with such
Product;
B. Distributor represents and warrants itself to be experienced in
marketing, sales and the management of a sales force.
C. CCI desires to retain the services of Distributor, for the duration of
this Agreement and in accordance with the following terms and
conditions, to sell, lease and place Product and Services,
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND CONDITIONS
REFERENCED HEREIN, THE PARTIES AGREE THAT THE FOLLOWING TERMS AND CONDITIONS
SHALL GOVERN THE RELATIONSHIP OF THE PARTIES AND THE SALE, LEASE AND PLACEMENT
OF THE PRODUCTS AS FOLLOWS:
AGREEMENT
I. CONTRACT TERM AND TERMINATION
A. This Agreement shall commence on the date executed by both
parties, shall continue thereafter in effect for a period of
two (2) years, or until terminated by either party for cause
pursuant to the terms of Paragraph B below.
B. Termination for cause shall include, but is not limited to, the
following:
1. In the event either party fails to pay all amounts due the
other in accordance with the terms of this Agreement,
2. In the event either party materially breaches the terms of
this Agreement,
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3. In the event either party becomes or is declared insolvent,
becomes subject to a voluntary or involuntary bankruptcy or
similar proceeding, or makes an assignment for the benefit
of all or substantially all of its creditors; in such case
it is the responsibility of Distributor to notify CCI should
any of the aforementioned occur. Failure to notify CCI shall
constitute a material breach of this Agreement.
4. Distributor misrepresents any CCI Product or Service to third
parties.
CURE PERIOD
In the event a Party commits an act set forth above (the
"Breach") (the "Breaching Party"), the other party (the
"Non-breaching Party") may terminate this Agreement provided
that the Non-Breaching Party notifies the Breaching Party of
the Breach and the Breaching Party fails to cure the Breach
within sixty days from receipt of said notice.
II. INDEPENDENT CONTRACTOR STATUS
A. Distributor shall at times be an independent contractor under
this Agreement. Except as expressly set forth herein,
Distributor is not authorized to act on behalf of CCI, act in a
manner that would indicate or imply, or represent itself to be
an officer, agent, employee, or representative of CCI.
B. CCI is not authorized to act on behalf of Distributor, act in a
manner that would indicate or imply, or represent itself to be
an officer, agent, employee, or representative of Distributor.
C. Distributor agrees to pay all of its own expenses, such as, but
not limited to, all operating expenses including rent,
telephone, transportation, entertainment, business cards,
brochures, and other expenses necessary to operate Distributors
business.
D. Distributor concedes and recognizes the exclusive rights of CCI
in and to, and shall have no right or license in, the trade
names Check Central, Inc and the trademarks and trade name used
with or affixed to any Product, including OneCash, SmartCash
ATM and any subsequently acquired trade names and/or
trademarks. Notwithstanding the foregoing, CCI shall license
Distributor to use trademarks in advertising the Products and
Services upon receipt of prior written approval from CCI. CCI
shall provide Distributor with written instructions as to the
proper use and display of said trademarks and trade names.
E. During the term of this Agreement, Distributor and
Distributor's agents are authorized to use the phrase
"Independent CCI Distributor" in connection with the sale,
advertisement, and promotion of Products and Services and not
in connection with any other aspect of Distributors business.
Distributor shall conduct its business solely under
Distributor's own name except for purposes of complying with
the Networks' rules and requirements for Independent Sales
Organization Sponsorship. Nothing herein shall give
Distributor or wholesale customers of Distributor any Interest
or license in such phrase and the right to use such phrase
shall immediately cease upon termination or cancellation of
this
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Agreement. Distributor specifically agrees to reimburse CCI
for any reasonable losses it may suffer in the event
Distributor uses the above name(s) and/or phrase in a
fraudulent or deceptive manner which in turn causes ant third
party to make a claim against CCI.
F. If Distributor has employees, Distributor shall maintain
xxxxxxx'x compensation insurance for its employees. In
addition, Distributor, at its sole cost and expense, shall
maintain no less than $1,000,000 in personal injury liability
and $1,000,000 property damage insurance upon any vehicle used
by Distributor and shall purchase and maintain during the term
of this Agreement comprehensive general liability insurance,
including product liability coverage, with combined single
limits of $1,000,000 or its equivalent. CCI must be named in
such policies as an additional insured and shall be furnished
with a copy of such policies or certificates of insurance.
Additionally, the policy shall contain a provision that it
cannot be canceled except upon ten- (10) day's prior written
notice to CCI.
III. APPOINTMENT NON-EXCLUSIVE
A. NON-EXCLUSIVE. Distributor shall remain, subject to the terms
and conditions of this Agreement, the non-exclusive
distributor, for a term of two years.
B. PRICE. Up to January 30, 2000 Distributor shall purchase the
Machines FOB Oceanside, California at the following prices
(the "Distributor Price"): (i) Based Model with 2 drawer cash
dispenser $27,000 (ii) Base Model with 4 drawer cash dispenser
$29,500. The services on the Base Model include, ATM , check
cashing and money order. A money receiver is not included in
the Base Model Price. Money receiver as specified by CCI is
$1,500. Distributor may resell the Machines at a price
determined by Distributor to be reasonable and appropriate to
achieve maximum market penetration. CCI recommends that a
retail price for a Machine be established at: 2 drawer
$34,000; 4 drawer $36,500 and with xxxx paying (money
receiver) $35,500 and $38,000. In addition, if CCI ships the
Product to anywhere within the 48 United States the charge
will be $400. Furthermore, Advertising packages are also
available (see attached). We recommend each Machine be
accompanied by a start-up advertising kit at a charge of
$500.00. CCI agrees the Distributor Price may be adjusted on a
periodic basis to reflect reasonable changes in Greenland's
costs related to the manufacture/production of the Machine;
provided however, that Distributor receive 60 days written
notice prior to any such adjustment and the Distributor Price
may only be adjusted if prices charged by CCI to other
distributors are also adjusted by similar amounts. The
Distributor Price shall always be equal to or less than the
price charged by CCI to any other level I or level II
distributor for the same product. It is anticipated that on or
about March 1, 2000 all machine model prices will be increased
by approximately $2,000 each, subject to the notice
requirements contained herein (Level 1 distributor must sell
a minimum of 12 machines a year and receives a price of
$27,000 for a base model. Level 11 distributor has no minimum
sales requirement and receieves a price of $28,500 for base
model)
In addiiton, if Distributor places orders (with deposits) for
at least 100 Machines during the first 12 months of this
Agreement, the Distributor Price shall be reduced by $1,000
for all Machines purchased in excess of 100 during said 12
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month period and Distributor shall receive a rebate of $500
per machine for each of the first 100 Machines purchased
during said 12 month period (the "Rebate"). The Rebate shall
be applied against future purchases of Machines on a pro-rata
machine purchase basis.
C. EXCLUSIVE ATM PROCESSOR. Distributor may, at his option,
become the exclusive ATM processor for the Machines purchased
pursuant to this Agreement.
D. VAULT CASH. Distributor shall have the right to supply vault
cash for the Machines sold pursuant to this Agreement.
E. SERVICE & INSTALLATION. Distributor may, subject to mutually
acceptable terms and conditions, have the exclusive right to
provide delivery and maintenance service and installation for
the Machine purchased pursuant to this Agreement.
IV. COMPENSATION OF DISTRIBUTOR
A. Distributor shall be compensated for its services under this
Agreement as follows. Distributor may purchase the Machines
from CCI or place the Machines with a third party on behalf of
CCI, under the pricing arrangement set forth in Paragraph III
B above and set forth on "Schedule 1" hereto. As stated in
Paragraph III B, the Distributor Price may be amended from
time to time by CCI, upon sixty (60) day's prior written
notice to Distributor. When Machines are sold by Distributor,
Distributor shall keep the difference between Distributor
Price and the price charged by Distributor as compensation.
Pricing information is the confidential property of CCI and
shall be for the internal use of the Distributor only. At all
times for the duration of this Agreement, Distributor shall be
considered and designated by CCI as a "Distributor" for
purposes of computing prices as set forth in "Schedule 1"
B. In no event shall any other fees or expenses be paid to
Distributor except as specifically provided in "Schedule I"
hereto and/or Paragraph III B.
V. SCOPE OF AGREEMENT
Distributor's non-exclusive territory shall include the entire United
States.
VI. OBLIGATIONS OF DISTRIBUTOR AND CCI
A. Distributor agrees to use its best efforts in the promotion,
sale and placement of the Products and Services and to devote
such time as necessary to market The Products consistent with
good business ethics, and in a manner that will reflect
favorably on CCI and on the good will and reputation of CCI.
B. Distributor agrees to provide all tools, hire and/or contract
personnel, and otherwise provide whatever is necessary to
market the Products and Services.
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C. Distributor agrees at all times to refrain from engaging in any
illegal, unfair or deceptive trade practices or unethical
business practices whatsoever, whether with respect to CCI or
otherwise.
D. Distributor agrees to adopt and maintain the high level of
quality and customer service that CCI has established.
E. Distributor agrees to ensure that all payments and documents
required by CCI for the sale or placement of its Products are
properly executed and forwarded to CCI.
F. Distributor shall not knowingly make any misrepresentation
regarding any of the Products and/or services provided by CCI.
G. Distributor shall acquire and maintain a valid business license,
business address and telephone for receiving inquiries about, or
fulfilling orders for the Products made available by CCI.
H. CCI shall: (i) supply a Machine that is fit for use for the
purpose intended with a one year warranty as described in
Paragraph XX. (ii) pay amount due Distributor promptly, (iii)
comply with applicable local, state and federal regulations,
(iv) maintain adequate insurance to conduct its operations
VII. COVENANT NOT TO COMPETE
In the event customer elects to evaluate alternative hardware options
and engages Distributor, Distributor has the right to pursue such
customer utilizing alternative options. CCI (including its master
distributor SmartCash ATM LTD) shall not solicit any Distributor
Corporate Accounts (Corporate Accounts are defined as accounts that own
or control 100 or more locations) covered by this covenant not to
compete, concerning the sale of the Product or other similar
self-service check cashing kiosk sold by CCI under this Agreement. In
order to prevent solicitation of CCI's Corporate Accounts by Distributor
(Corporate Accounts are defined as accounts that own or control 100 or
more locations) and solicitation of Distributor's Corporate Accounts by
CCI, CCI agrees that within 20 days of execution of this Agreement that
CCI will submit a list of any Corporate Accounts that are presently
being actively solicited by CCI (the "Solicitation List"). At such time
as Distributor desires to pursue a new Corporate Account, Distributor
shall submit a request for a 120 day covenant not to compete. If said
account is not actively being solicited by CCI (including its master
distributor SmartCash ATM LTD), then for a period of 120 days
Distributor shall have the exclusive rights to that account and if said
account is still in serious negotiations with Distributor after 120
days, the exclusivity shall continue until such time as said account
indicates a desire to cease further negotiations with Distributor or
Distributor and CCI agree that the process is unlikely to achieve
success. CCI will update the Solicitation List on a monthly basis. CCI
agrees that Greyhound Corporation, American Express and Southland
Corporation are exclusive accounts of Distributor and shall remain
exclusive clients of Distributor within their existing covenant not to
compete. Any exceptions to this Covenant Not to Compete must be attached
to this Agreement as Schedule 3 and approved by a CCI officer.
Notwithstanding the forgoing, Distributor shall be released from its
obligation not to compete in the event that CCI has been found to have
committed an act that validates this Agreement being terminated for
cause by Distributor.
VIII. INDEMNIFICATION/HOLD HARMLESS
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A. Distributor shall indemnify, hold harmless, and defend, at its
sole cost and expense, CCI against and from any and all claims,
actions, proceedings, damages, liabilities, losses, fines,
penalties, expenses, attorneys fees and all other associated
costs arising out of, or related in any manner whatsoever to
Distributor's, its agent's or employee's real or alleged
wrongful, acts or omissions (whether tortuous or contractual)
in connection with the sale or placement of the Products.
B. CCI shall indemnify, hold harmless, and defend, at its sole
cost and expense, Distributor against and from any and all
claims, actions, proceedings, damages, liabilities, losses,
fines, penalties, expenses, attorneys fees and all other
associated costs arising out of, or related in any manner
whatsoever to CCI's, its agent's or employee's real or alleged
wrongful, acts or omissions (whether tortuous or contractual)
in connection with the sale or placement of the Products.
IX. COVENANT NOT TO DISCLOSE
A. Distributor, during the terms of this Agreement, shall have
access to and become familiar with various trade secrets and
confidential information of CCI including but not limited to,
customer contracts, customer lists, customer prospect lists,
invoices, customer requirements, sales procedures, research
data, design data, marketing and pricing information and data,
marketing plans, financial information of CCI and/or its
customers, and other technical, marketing and/or business
information. This information shall collectively be referred
to as the "Confidential Information" of CCI and Distributor
recognizes and acknowledges that this Confidential Information
gives CCI a competitive advantage in the industry. Distributor
agrees that it shall not use in any way or disclose to any
person or entity any of CCI's Confidential Information, either
directly or indirectly, either during the term of this
Agreement or at any time thereafter, except as required in the
course of its services under this Agreement. Distributor shall
further take reasonable precautions and act in such manner as
to ensure against unauthorized disclosure or use of the
Confidential Information. Such information shall be promptly
delivered to CCI (without Distributor retaining copies) upon
termination of this Agreement.
B. CCI, during the terms of this Agreement, shall have access to
and become familiar with various trade secrets and
confidential information of Distributor including but not
limited to, customer contracts, customer lists, customer
prospect lists, invoices, customer requirements, sales
procedures, research data, design data, marketing and pricing
information and data, marketing plans, financial information
of Distributor and/or its customers, and other technical,
marketing and/or business information. This information shall
collectively be referred to as the "Confidential Information"
of Distributor and CCI recognizes and acknowledges that this
Confidential Information gives Distributor a competitive
advantage in the industry. CCI agrees that it shall not use in
any way or disclose to any person or entity any of
Distributor's Confidential Information, either directly or
indirectly, either during the term of this Agreement or at any
time thereafter, except ad required in the course of its
services under this Agreement. CCI shall further take
reasonable precautions and act in such manner as to ensure
against unauthorized disclosure or use of the Confidential
Information. Such information
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shall be promptly delivered to Distributor (without CCI
retaining copies) upon termination of this Agreement.
C. The Parties recognize and acknowledge that the remedy at law
for a breach by either party of any covenants contained in this
Section IX shall be inadequate, and each party agrees that the
other party in addition to all remedies each may have, shall
have the right to injunctive relief to enforce the provisions
of this Agreement if there is such a breach or threatened
breach.
X. NO GUARANTEES OR REPRESENTATIONS MADE BY CCI
Distributor understands and agrees that:
A. Neither CCI or any agent, employee or representative of CCI
have made any guarantees, representations, or promises
concerning the income, gross or net revenues which can or might
be realized by Distributor under this Agreement. The success of
Distributor under this Agreement is entirely dependent upon
Distributor's own business, marketing and managerial skills.
B. The Agreement does not constitute an Agreement for a joint
venture, partnership, investment interest, franchise or any
relationship other than that of Independent Contractor for CCI.
Notwithstanding the forgoing, CCI represents that it is a corporation duly
organized and validly existing under the laws of the State of Nevada and is in
good standing under such laws. CCI has all requisite corporate power and
authority to own lease and operate its properties and assets and to carry on its
business as presently conducted. CCI is qualified to do business as a foreign
corporation and is in good standing in California. CCI has all requisite
corporate right, power and authority to execute and deliver this Agreement and
all agreements related hereto and to consummate the transactions contemplated
hereby.
XI. CHOICE OF LAW/FORUM
A. This Agreement has been entered into, executed, and shall be
construed in accordance with the laws of the State of Texas.
B. In the event of a dispute concerning this Agreement, the
parties agree that any proceeding for resolving such dispute
shall occur in the County of Dallas, State of Texas.
XII. ATTORNEY FEES FOR PREVAILING PARTY
In any action at law or in equity, including an action for declaratory
relief, the prevailing party shall be entitled to an award of
reasonable attorney fees in addition to other awards resulting from
the dispute.
XIII. PURCHASE ORDERS
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A. Purchase orders, which must be on a CCI approved form, from
Distributor are subject to written acceptance by CCI and must
incorporate this Agreement by reference. CCI shall have no
obligation under a purchase order placed under this Agreement
until such written acceptance is dispatched to Distributor by
CCI. All purchase orders will be deemed accepted by CCI if no
objection in writing is received within one week of submission
by DistributoR. Any change to a previously accepted purchase
order, as of the date changed, will be treated as a new
purchase order submitted for acceptance by CCI. Purchase
orders and confirmation by FAX may be accepted by both
parties.
B. Terms of purchase are as follows: 50% down submitted with
purchase order. Delivery is 45 days of purchase order and
balance is paid COD with delivery and shipment is made FOB CCI
shipping facility.
XIV. DISTRIBUTORS RIGHT TO SUBLICENSE
Distributor is authorized and has the right to enter into
sublicensing agreements and/or distribution agreements with third
parties provided that said agreements contain the essential terms and
conditions of this Agreement as they relate to the protection of the
rights of CCI, including but not limited to: confidentiality
requirements, payment terms and conditions, and obligations of
Distributor. The sublicense's and distributors shall be listed on the
Registration Form attached as Schedule 2.
XV. CANCELLATION AND RESCHEDULING OF ORDERS
CCI and Distributor recognize that the calculation of damages resulting
from cancellation or rescheduling of an order would be difficult to
determine. Accordingly, the parties agree upon the following schedule
of charges pursuant to which CCI will accept cancellation of
rescheduling of any order from Distributor.
A. CANCELLATION: Distributor may cancel in whole or in part any
order previously accepted by CCI, providing that Distributor
reimburses CCI for any expenses incurred by CCI in connection
with such order and cancellation. Notwithstanding the
foregoing, in the event cancellation by Distributor is due to
delay or defective product on the part of CCI, Distributor will
pay no fees, charges or expenses whatsoever.
B. RESCHEDULING: Distributor may reschedule the shipment date of
any order previously accepted by CCI by not more than thirty
(30) days by giving written notice to CCI received more than
five (5) business days prior to the scheduled shipment date.
CCI will accept any subsequent rescheduling of the same order
by written notice to CCI received more than five (5) business
days prior to the scheduled shipment date only if accompanied
by payment of any expenses incurred by CCI in connection with
such rescheduling.
XVI. DELIVERY
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A. Delivery for all Products will be F.O.B. from CCI's staging
warehouse or the manufacturer, as appropriate ("Delivery"). CCI
shall not be liable for any delay in Delivery unless such delay
is due to the acts or omissions of CCI. Shipping charges shall
be paid by purchaser through Distributor.
B. Prices are F.0 B.. and are exclusive of all taxes and duties.
Distributor shall pay all taxes and duties associated with the
sale of Products and Services, including sales, use, but
exclusive of taxes based on CCI's net income. Any tax or duty
CCI may be required to collect or pay upon the sale or delivery
of Products shall be paid by the Distributor and such sums
shall be due and payable to CCI upon delivery,
XVII. PRODUCT SPECIFICATION CHANGES
CCI reserves the right to make changes in design or improvements to
the Product. CCI agrees that it will consult with Distributor
regarding any such changes and agrees to coordinate the timing of
implementing any such changes with Distributor and will provide 30
days written notice prior to implementation of any change to design
and/or Product. CCI is not obligated to make any such changes to the
Product previously delivered to Distributor.
XVIII. SOFTWARE PRODUCT LICENSE
Unless otherwise stated, CCI grants Distributor a nontransferable,
non-exclusive license to use its operational software programs for the
purpose of the operation of the Product with customers only. The
software provided by CCI is subject to the following provisions:
A. CCI retains title to all software and/or firmware programs
B. Distributor agrees not to copy, duplicate or otherwise
reproduce, disclose sub-license or sell any CCI-supplied
software and/or firmware program.
XIX. TITLE AND RISK OF LOSS
Each accepted purchase order constitutes separate sales contract based
on the prices; terms and conditions set forth in this Agreement or as
amended from time to time in accordance with this Agreement. Title to
the Product, parts and components sold under each purchase order and the
risk of loss or damages to the Product will pass from CCI to Distributor
at the time that the Product is properly loaded on a carrier for
shipment.
XX. PRODUCTS WARRANTY
A. Up to February 28, 2000, the Product sold by CCI and purchased
by Distributor under this Agreement is covered by CCI's
standard warranty, one year parts and labor (copy to be
supplied)("CCI Warranty"). CCI reserves the right to modify
such warranty on prior written notice to Distributor. After
February 28, 2000, warranty periods may be limited to 90 days
full parts and labor and one year on parts.
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B. In addition to the CCI Warranty, CCI will use reasonable
efforts to obtain and pass through to Distributor's customers
all available warranties obtained from manufacturers of the
Products and/or the components of the Products.
C. EXCEPT AS SPECIFICALLY PROVIDED HEREIN. NO WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE ARE BEING MADE HEREIN. CCI
NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR
IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE,
INSTALLATION OR USE OF THE PRODUCTS. NO REPRESENTATION OR OTHER
AFFIRMATION OF FACT INCLUDING BUT NOT LIMITED TO STATEMENTS
REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF
PRODUCTS, WHETHER MADE BY CCI EMPLOYEES OR OTHERWISE, WHICH IS
NOT CONTAINED HEREIN, SHALL BE DEEMED TO BE A WARRANTY BY CCI
FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF CCI
WHATSOEVER.
D. CCI SHALL HAVE NO LIABILITY FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
E. Distributor shall not make any other direct or indirect
representations or warranties, expressed or implied on behalf
of CCI. In the event Distributor does make any such
unauthorized representation or warranties, expressed or
implied, in connection with the sale, distribution or handling
of the Product, Distributor shall hold harmless and indemnify
CCI for any expenses (including counsel fees), claims, damages,
settlements or liability of any nature whatsoever arising out
of such unauthorized representation of Distributor.
XXI. LIMITATION OF LIABILITY
A. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CCI SHALL NOT BE LIABLE
FOR ANY LOSS OR DAMAGE CLAIMED TO HAVE RESULTED FROM USE,
OPERATION OR PERFORMANCE OF THE PRODUCT AND REGARDLESS OF THE
FORM OF ACTION IN ANY AMOUNT ABOVE THE FEE PAID FOR SAID
PRODUCT [EXCEPT FOR LOSS OR DAMAGE CAUSED BY THE SOLE
NEGLIGENCE OF CCI.]
B. IN NO EVENT SHALL CCI BE LIABLE TO DISTRIBUTOR OR ITS END-USER
CUSTOMERS FOR (1) ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (ii) ANY DAMAGES RESULTING FROM LOSS OF
USE, DATA OR PROFITS, OR (iii) ANY CLAIM, WHETHER IN CONTRACT
OR TORT, THAT AROSE MORE THAN ONE YEAR PRIOR TO INSTITUTION OF
SUIT THEREON, EVEN IF CCI WAS ADVISED, KNEW, OR SHOULD HAVE
KNOWN OF THE POSSIBILITY THEREOF.
C. THE FOREGOING LIMITATIONS ON LIABILITY SHALL BE EFFECTIVE,
EVEN IF THE REMEDIES PROVIDED HEREIN FAIL IN THEIR ESSENTIAL
PURPOSE--[CCI LIABILITY SHALL IN NO EVENT EXCEED THE PURCHASE
PRICE OF THE PRODUCTS PURCHASED.]
XXII. INSERTION OF SOFTWARE SERVICES
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CCI shall have the exclusive right to determine services
provided by the Machine and the exclusive right to add or
delete services from the software menu and Distributor shall
have no right to add services or utilize the soft xxxx of CCI
for any reason whatsoever, without the prior consent of CCI
which may be withheld for any reason or for no reason;
provided, however, in the event CCI determines in its sole and
absolute discretion to utilize a software and/or a service
introduced by Distributor, CCI will negotiate in good faith a
licensing arrangement providing for the utilization of said
software and/or services at that terms such as ownership,
retention, licensing fees, royalties etc.
XXIII. GENERAL PROVISIONS
A. The parties agree to execute any further documents and
Instruments, which are necessary to effect the substance and
intent of this Agreement.
B. If any part of this Agreement is construed as unconstitutional,
illegal or otherwise invalid by a court of competent
jurisdiction, the invalid part shall in no way invalidate the
effectiveness of the remainder of this Agreement.
C. This Agreement contains all of the Agreements, representations
and conditions made by and between the parties. None of the
parties shall be liable as a result of reliance upon any
statements or representations not contained in this Agreement,
or which contradict the expressed contractual language of this
Agreement.
D. Each party to this Agreement shall have sole responsibility for
fulfilling its respective commitments and obligations to the
appropriate local, state and federal taxing authorities, as a
result of this Agreement and any payments made or received
hereunder.
E. Notice shall be deemed given (i) when received, if hand
delivered and a receipt is executed or (ii) when receipt is
executed, if given in writing and actually delivered or
deposited in the United States Mail in registered or certified
form with return receipt requested postage paid (iii) or
received on CCI's Corporate Office facsimile machine given
below, All notices shall be given to the notified party at the
address given below. The address for notice may be changed by
notice.
CHECK CENTRAL, INC.
0000 Xxxxxxx Xxx Xxx, Xxxxx X
Xxxxxxxxx, XX 00000
PH#:000-000-0000 FAX#:000-000-0000
H. Each party to this Agreement shall execute all instruments and
documents and take all actions as may be reasonably required to
effectuate this Agreement.
I. For purposes of venue and jurisdiction, this Agreement shall be
deemed made and to be performed in the City of Dallas, State of
Texas.
J. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall
constitute one document, The facsimile signatures of the parties
shall be deemed to constitute original signatures, and
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facsimile copies hereof shall be deemed to constitute duplicate
original counterparts.
K. Whenever the context so requires in this Agreement all words
used In the singular shall be construed to have been used in the
plural (and vice versa), each gender shall be construed to
include any other genders, and the word "person" shall be
construed to include a natural person, a corporation, a firm, a
partnership, a joint venture, a trust, an estate, or any other
entity.
L. The provisions of this Agreement shall be valid and enforceable
to the fullest extent permitted by law. If any provision of this
Agreement or the application of such provision to any person or
circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
by such invalidity or unenforceability, unless such provision or
the application of such provision is essential to the Agreement.
M. This Agreement may be modified only by an agreement in writing
executed by the parties to this Agreement, against whom
enforcement of such modification is sought.
N. This Agreement contains the entire Agreement between the parties
to this Agreement with respect to the subject matter herein and
supersedes all prior understandings, agreements, representations
and warranties, if any, whether oral or written, express or
implied, with respect to said subject matter.
0. Any waiver of default under this Agreement must be in writing
and shall not be a waiver of any other default concerning the
same or any other provision of this Agreement. No delay or
omission in the exercise OF any rights or remedies shall impair
its right of remedy or be construed as a waiver. A consent to or
approval of any act shall not be deemed to waive or render
unnecessary consent to or approval of any other or subsequent
act.
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P. Each party to this Agreement and its counsel have reviewed and
revised this Agreement. The rule of construction that any
ambiguities are to be resolved against the drafting parties shall
not be employed in the interpretation of this Agreement or of any
amendments or exhibits to this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the day and year set forth herein below.
CHECK CENTRAL, INC. ACS ELECTRONIC COMMERCE GROUP
By:___________________________ By:_________________________
Signature Signature
Name:_________________________ Name:_______________________
(Please print) (Please print)
Title:________________________ Title:______________________
Date:_________________________ Date:_______________________
AGREED, ADOPTED AND APPROVED AND AGREEING TO BE BOUND THEREBY GREENLAND
CORPORATION HEREBY AFFIXES ITS DULY AUTHORIZED SIGNATURE
GREENLAND CORPORATION
By: ___________________________
Xxxxx X. Xxxxxxxx
Chairman and CEO
Date: _________________________
ATTACHMENTS:
Exhibit A - Product
Schedule 1- Pricing
Schedule 2- Registration Form
Page 13 of 16
EXHIBIT A
PRODUCT
Page 14 of 16
SCHEDULE 1
PRICING
The pricing for the SmartCash ATM paid by Distributor is as set forth in
Paragraph III unless subsequently adjusted by Greenalnd as per the terms of
this Agreement.
Page 15 of 16
SCHEDULE 2
REGISTRATION FORM
Name of Company/Person:
Address of Company/Person:
Name and title of Contact person:
Copy of Sub License Agreement (attached hereto)
Page 16 of 16
