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EXHIBIT 10.9
TOWNE CREDIT BANK MARKETING AGREEMENT
among
Towne Services, Inc.
and
The "Bank":
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Date:
Towne Services, Inc. ("TSI") operates an automated merchant point of
sale service which serves as a "virtual credit card" program for small and
medium size merchants selling goods or providing services on in-house accounts,
and the Bank desires to participate in the Towne Credit program and market the
program to its customers. Capitalized terms not defined in this Agreement shall
have the meaning set forth in the Uniform Commercial Code.
The Bank and TSI agree as follows:
SECTION 1. THE TOWNE CREDIT PROGRAM
1.1 MARKETING AND OPERATION OF THE TOWNE CREDIT PROGRAM. The Bank
hereby elects to participate in the Towne Credit program in accordance with the
guidelines issued from time to time by TSI. The Bank agrees to provide TSI with
a list of the Bank's customers which the Bank believes would be appropriate
candidates to process transactions through the Towne Credit program, and TSI
agrees to assist the Bank in marketing the Towne Credit program to these
customers. The Bank agrees to enter into a Towne Credit Merchant Processing
Agreement, in the form then used by TSI (a "Processing Agreement"), with TSI and
the merchants which agree to participate in the Towne Credit program through the
Bank. TSI will assist each merchant in the installation of, and will provide
maintenance and support for, the Towne Credit program and the point of sale
terminal and other materials used in connection with the program. TSI will also
notify the Bank of complementary services or products TSI may offer or provide
from time to time in connection with the Towne Credit program, such as the
ability to include advertisements or other information with the statements
mailed to the merchant's customer, and will offer the Bank the opportunity to
purchase such services or products at TSI's then current rates. The services and
products offered by TSI through the Towne Credit Program, and the fees charged
for such services and products, are set forth on Schedule A. TSI will update
Schedule A from time to time, but will provide the Bank with at least 30 days'
prior notice of any increase in fees.
1.2 DISPLAYING SYMBOLS, SERVICE MARKS, AND NAMES. Upon request, TSI
will sell or otherwise supply the Bank with a reasonable supply of advertising
displays, merchant decals, and other point-of-sale promotional materials bearing
the Towne Credit program symbol and name to be used by the Bank pursuant to this
Agreement. The Bank agrees to display the current signage, symbols, service
marks, and name of the Towne Credit program on promotional materials to inform
its customers that the Bank offers the Towne Credit program. The Bank's right to
use or display such items shall continue only so long as this Agreement or any
successor agreement is in effect. The Bank acknowledges that the trademark
"Towne Credit" and the corresponding logotype are the property of TSI. The Bank
shall not infringe upon the xxxx or logo, nor otherwise use the xxxx or logo in
such a manner as to create the impression that the Bank's services are
affiliated with or offered by TSI.
1.3 COMPLIANCE WITH LAWS AND INDEMNIFICATION. The Bank agrees to comply
with all federal, state, and local laws, regulations, and ordinances in
connection with its dealings with customers in the performance of its
obligations hereunder. The Bank agrees to indemnify and hold TSI harmless from
and against any and all liabilities, losses, costs, damages, attorneys' fees,
and expenses of whatever kind or nature (i) which TSI may sustain or incur by
reason of, or in consequence of, the Bank's failure to comply with such laws,
regulations, or ordinances, (ii) in connection with any disputes related to
sales transactions which are processed through the Towne Credit program, or
(iii) in connection with any applicable rule requiring that records of sales or
credit transactions be maintained by the Bank or TSI or any other person. The
Bank is responsible for making its own credit decisions
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and agrees to indemnify and hold TSI harmless against all claims, losses, or
damages relating thereto or relating to claims by its customers.
SECTION 2. GENERAL
2.1 EXCLUSIVE AGREEMENT; CONFIDENTIALITY. While this Agreement is in
effect, the Bank shall not enter into a merchant participation agreement for any
other product similar to Towne Credit. The Bank acknowledges that this Agreement
and the related materials provided by TSI pursuant to this Agreement (the
"Confidential Materials") consist of confidential information of TSI. The Bank
shall treat the Confidential Materials in confidence and shall not use, copy, or
disclose them, nor permit any of its personnel to use, copy, or disclose them,
for any purpose that is not specifically contemplated by this Agreement.
2.2 NOTICES. TSI may modify the prices and terms set forth on Schedule
A from time to time upon 30 days' prior written notice to the Bank. Any notice
required or permitted to be given may be given in writing by depositing such
notice in the United States mail, postage paid, addressed as indicated below or
to such other place or places as either party hereto shall designate by written
notice to the other.
2.3 LIMITATION OF LIABILITY. The Bank acknowledges that data conversion
is subject to likelihood of human and machine errors, omissions, delays, and
losses, including inadvertent mutilation of documents, which may give rise to
loss or damage. Accordingly, the Bank agrees that TSI shall not be liable on
account of any such errors, omissions, delays, or losses unless caused by its
gross negligence or willful misconduct. The Bank is responsible for adopting
reasonable measures to limit its exposure with respect to such potential losses
and damages, including (without limitation) examination and confirmation of
results prior to use thereof, provision for identification and correction of
errors and omissions, preparation and storage of backup data, replacement of
lost or mutilated documents, and reconstruction of data. The Bank is also
responsible for complying with all local, state, and federal laws pertaining to
the use and disclosure of any data and in connection with all agreements the
Bank enters into with its customers. The Bank acknowledges that any form of
agreement provided by TSI which the Bank may use with its customers is provided
by TSI solely for the Bank's benefit; the Bank is not obligated to use any such
agreement; and the Bank should consult its own legal and accounting advisers
with respect to the enforceability and accounting treatment thereof. The
cumulative liability of TSI to the Bank for all claims relating to the Towne
Credit program and this Agreement, including any cause of action sounding in
contract, tort, or strict liability, shall not exceed the total amount of all
fees paid to TSI hereunder. In no event shall TSI be liable for any loss of
profits; any incidental, special, exemplary, or consequential damages; or any
claims or demands brought against the Bank, even if TSI has been advised of the
possibility of such claims or demands. This limitation upon damages and claims
is intended to apply without regard to whether other provisions of this
Agreement have been breached or have proven ineffective.
2.4 GENERAL. This Agreement shall be governed by Georgia law. This
Agreement may be executed in one or more counterparts. Promptly upon request by
TSI, the Bank shall execute such other agreements or instruments and give all
assistance reasonably required to evidence more fully and otherwise give full
and proper effect to the Bank's and TSI's rights under this Agreement. If any
provision of this Agreement is held by a court of competent jurisdiction to be
contrary to law, the remaining provisions of this Agreement will remain in full
force and effect. The Bank and TSI are independent contractors and nothing
contained herein shall be deemed to constitute either the Bank or TSI as agent
for the other. This Agreement shall be binding upon the successors of the Bank
and TSI but may not be assigned by either party without the written consent of
the other, except that TSI may assign this Agreement to any subsidiary or
affiliate or pursuant to a merger, sale of substantially all its assets, or
similar transaction. This Agreement and its attachments constitute the entire
agreement between the parties with respect to the matters covered hereby and
supersede all prior agreements, oral or written, and all other communications
relating to the subject matter hereof (but any rental of a Towne Credit point of
sale terminal shall be made pursuant to and subject to the terms of a separate
rental agreement).
2.5 TERMINATION. The initial term of this Agreement is specified on the
signature page of the Agreement. The Agreement will be automatically renewed for
additional one year terms unless either party gives written notice to the other
party not to renew the Agreement at least 30 days prior to the scheduled
termination date. In addition, this Agreement may be terminated prior to the end
of the term by either party at any time upon 30 days' prior written notice to
the other setting forth the effective date of termination. From and after such
effective date the Bank shall cease processing sales through the Towne Credit
program, shall cease displaying the service marks, symbols, and names related to
the Towne Credit program, and shall promptly return to TSI all materials
relating to the Towne Credit program. All obligations of the Bank incurred or
existing under this Agreement as of the date of termination shall survive such
termination.
IN WITNESS WHEREOF, TSI and the Bank have executed this Agreement as of
the date set forth on the first page of this Agreement.
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THE BANK: TOWNE SERVICES, INC.:
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By: By:
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Name: Name:
Title: Title:
MAILING ADDRESS: MAILING ADDRESS:
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Initial Term of the Agreement: ____ years
