EXHIBIT 10-b
CARD MEMBER LICENSE AGREEMENT
TO: Colonial National Financial Corp.
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(Licensee's legal name)
448 East 6400 South, Suite 150
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(Street address of principal office)
Murray, Utah 84107
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(City and State of principal office)
The following is a license agreement made between you and MasterCard
International Incorporated "Licensor", a membership corporation organized under
the laws of the Sate of Delaware, located at 888 Seventh Avenue, New York, New
York.
1. DESCRIPTION OF THE MARKS. Licensor has developed a number of service
marks utilizing the name MasterCard, as set forth in Appendix 2A, Chapter 2 of
the MasterCard International Bylaws and Rules manual, for use with the services
described below and other services which Licensor may add at any time:
(a) The issuance of Charge and debit services cards;
(b) The establishment of agreements with merchants to provide goods or
services to holders of debit services and charge cards, and the assignment,
transfer or presentation by such merchants of the sales slips representing such
transactions to financial institutions for payment;
(c) The making of cash advances;
(d) The electronic or paper based transfer of funds, whether through ATM
or POS terminals or otherwise, of holders of debit service cards (including the
withdrawal of funds from designated accounts, and the transfer of funds between
designated accounts), the guarantee of checks and similar negotiable instruments
of holders of debit services cards, and other related services;
(e) The operation of charge card and debit services card transaction
authorization centers;
(f) The settlement, honoring and interchange of the transaction records
generated by use of the charge and debit services cards;
(g) The provision of cardholder accounting through a central or
independent billing system; and
(h) The advertising and promotion of all the above activities.
These marks, which utilize the work MasterCard(R), are referred to in this
agreement as "the marks," or "the MasterCard marks" as the case may be. Cards
bearing the marks are referred to herein as "MasterCard cards."
2. GRANT OF LICENSE. Licensor hereby grants you a nonexclusive license
to use the marks for any of the services authorized by paragraph 1 in connection
your charge card or debit services business. However, you must notify Licensor,
in such form as Licensor may designate, prior to commencing use of the marks in
connection with your charge card business and prior to commencing use of the
marks in connection with your debit services business.
3. DURATION OF LICENSE. The duration of this license is perpetual,
subject to the termination provisions of this agreement and subject to the
Licensor's right to forgo rights in the marks.
4. OWNERSHIP AND VALIDITY OF THE MARKS. By accepting this license, you
recognize that Licensor is the exclusive owner of the marks, and you agree that
you will never contest, directly or indirectly, Licensor's exclusive ownership
of the marks, or in any way dispute the validity of the marks. You agree that,
if any rights have accrued or may accrue to you in the marks by operation of
law, such rights will revert to Licensor upon termination of this agreement. You
also agree that you will cooperate with Licensor in perfecting Licensor's title
in the marks by written assignment of any rights which may accrue or in any
other manner necessary.
5. STANDARDS FOR THE MARKS AND SERVICES. Licensor shall establish
standards from time to time, which you hereby agree to follow, regulating the
manner in which licensees shall perform and conduct services connected with the
marks. These standards generally include, but are not limited to, the MasterCard
User's Manual and the Bylaws and Rules of Licensor. These standards may be
modified at any time by Licensor and made applicable to you.
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(As amended through 23 March 1994)
Card Member License Agreement
(As amended through 23 March 1994) Page 2
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These standards specifically include, but are not limited to, the
following requirements:
(a) MERCHANT AGREEMENTS. You must require merchants with which you have
MasterCard card agreements to agree:
(1) to honor without discrimination all cards bearing the marks of
Licensor which are properly presented; and
(2) to abide by the standards for display of the marks which may
be established by Licensor.
You shall also use your best efforts to cause your merchants to comply
with such agreements. For purpose of this agreement, a "merchant" is a retailer
or other person, firm or corporation which, pursuant to an agreement with a
license of the marks, agrees to accept, or to cause its outlets to accept,
MasterCard cards.
(b) INTERCHANGE. Using procedures approved by Licensor, you shall
interchange with all other licensees and members of Licensor any transaction
records which may be generated by use of cards properly bearing any of the marks
of Licensor.
(c) FORMAT OF MARKS. You may use the marks only in the form, style,
design and color authorized by Licensor. Licensor shall make no change in the
form, style, design or color of the marks, unless such change is approved by
MasterCard licensees eligible to vote holding 80% or more of the voting power of
all such licensees eligible to vote in accordance with the Bylaws of Licensor.
If Licensor makes a change in the form, style, design or color of the marks, you
must make the change within two years from the date of the change. If you fail
to make the change within two years, then you must discontinue use of the marks,
and this agreement shall terminate automatically.
(d) APPROVAL OF CARD FACE. The face of MasterCard cards issued by you
shall be identical to the cards shown in Appendix 2A, Chapter 2 of the
MasterCard International Bylaws and Rules manual. You shall promptly file with
Licensor a facsimile of the card in the form to be used by you, and you shall
not use or issue MasterCard cards in that form or any other form without
receiving prior written approval from Licensor.
(e) NOTICE OF LICENSOR'S OWNERSHIP OF MARKS. All documents, instruments,
papers, letters, advertisements, charge cards or debit services cards you issue
which carry the word MasterCard shall be marked by you with any notices of
Licensor's mark registrations that may be required by law or by Licensor.
6. MAINTENANCE OF RIGHTS IN THE MARKS. Licensor agrees to take such
action as it believes reasonable to protect and maintain its rights in the
marks. However, if Licensor decides, in its sole discretion, to forego rights in
the marks, it shall take reasonable action to protect your right to continue to
use the marks. Upon request, Licensor will provide you with a current
description of the status of its registrations and applications for registration
of the marks.
7. NOTICE OF INFRINGEMENT OF THE MARKS. As soon as you acquire any
knowledge of: (a) any infringement of the marks, (b) any conflicting claim of
third parties with request to the marks, or (c) any failure of any licensee to
adhere to the standards for the marks and services outlined in paragraph 5
above, you shall notify Licensor. You agree to give all lawful and reasonable
aid requested by Licensor in connection with its efforts to preserve and defend
the marks. Such aid would include, among other things, reasonable assistance in
investigations, negotiations and suits when requested, and it would also include
carrying on litigation in your own name or Licensor's behalf. All litigation
carried on by you at Licensor's request shall be subject to Licensor's control
and will be at Licensor's expense.
8. LICENSOR'S RIGHT TO INFORMATION. Licensor shall have the right to
obtain from you any information necessary to determine whether you are in
compliance with this agreement. However, you will not be required to furnish any
information relating to your interest rates, merchant discounts or other fees,
or credit selectivity policies or any other matter not relevant to such a
determination. If you believe that you are prevented from carrying out any of
the terms of this agreement by any laws or regulations, any information you
furnish Licensor under this paragraph shall specifically include a copy of such
laws or regulations. Furthermore, if Licensor requests it, you will furnish
Licensor an opinion or counsel confirming your conclusion that these laws or
regulations apply. At Licensor's request, you shall provide Licensor with a
reasonable opportunity to verify the information furnished under the paragraph.
If Licensor determines that you are prohibited by law or regulation from
carrying out any of the terms of this agreement, you shall undertake such
reasonable activities in the place of the prohibited activities as the
MasterCard Committee, or its successor, shall require.
Card Member License Agreement
(As amended through 23 March 1994) Page 3
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9. TERMINATION OF AGREEMENT BY LICENSOR. Licensor shall have the right
to terminate this agreement under the following circumstances:
(a) DISAFFILIATION. If you cease to be a card member of Licensor,
Licensor may terminate this agreement forthwith. If it chooses, Licensor may
authorize you to use the marks under a substitute agreement appropriate to
liquidating your MasterCard card business.
(b) NONCOMPLIANCE. If you fail reasonably to comply with any of the
obligations imposed by this agreement, or fail to make any payments required by
the Bylaws or Rules, Licensor may terminate this agreement in the following
manner:
(1) Licensor shall give you written notice of your failures in
sufficient detail to identify each alleged failure;
(2) You shall have ninety (90) days after this notice to cure each
failure; and
(3) If you have not cured each failure within this 90-day period,
this agreement shall terminate.
(c) INABILITY TO COMPLY DUE TO LEGAL DISABILITY. If you are unable to
comply with the provisions of this agreement because of any statute, regulation
or other requirement imposed by the jurisdiction in which you are located,
Licensor may terminate this agreement forthwith.
10. TERMINATION OF AGREEMENT BY LICENSEE. You may terminate this
agreement on 30 days written notice to Licensor.
11. TERMINATION FOR NON-USE. If you discontinue use of the marks in
connection with the services described in paragraph 1 above for a period of two
years, this agreement shall terminate automatically.
12. LICENSEE'S OBLIGATIONS UPON TERMINATION. Upon termination of this
agreement as provided in paragraphs 5(c), 9, 10, and 11 above, all of your
rights and obligations under this agreement shall terminate except that you
shall have the following residual obligations:
(a) You shall revoke all MasterCard cards issued by you and cease all
other use of the marks as of the termination date;
(b) You shall remain liable on all transactions resulting from the use
of the MasterCard cards issued by you until 90 days following the latest
expiration date embossed on any of your MasterCard cards;
(c) You shall remain liable on all amounts due from you pursuant to the
provisions of the Bylaws and Rules of Licensor, and for your appropriate share
of the expenses properly incurred by Licensor prior to the termination date on
behalf of all MasterCard licensees and debts related to the card activities of
Licensor, as provided in the Bylaws; and
(d) You shall not attempt to register or to aid third parties in
registering any trade or service mark confusingly similar to the MasterCard
marks.
13. LIST OF LICENSEES. Any list which contain the names and addresses of
MasterCard licenses which may be distributed to you shall remain the property of
Licensor and you shall not sell or give any such list to vendors.
14. SUBLICENSES AND ASSIGNMENTS PROHIBITED. You may not sublicense or
assign your right under this agreement whether by sale, consolidation, merger,
amalgamation, operation of law, or otherwise. However, you may transfer this
license to any institution which succeeds to substantially all of your business
or assets and which, at the time of such transfer, is a card member of Licensor.
15. MODIFICATIONS. This agreement may only be modified by the
affirmative action of the MasterCard Committee or its successor. This agreement
may not be orally modified or terminated.
16. OTHER AGREEMENTS. This agreement supersedes all inconsistent
representations, agreements, arrangements and understandings between you and
Licensor, whether written or oral, except that the provisions of this agreement
are subject to the provisions of the Bylaws and rules of Licensor.
Card Member License Agreement
(As amended through 23 March 1994) Page 4
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17. NOTICES. Any notice, demand, request or communication required or
permitted to be given under this agreement shall be in writing. Such notice
shall be considered sufficiently given when it is deposited to the public mails
as certified mail addressed to the appropriate party at the address shown on the
first page of this agreement or to such other address as may be designated by
the party from time to time.
18. GOVERNING LAW. All questions with respect to the interpretation,
effect and validity of this agreement, and the rights and obligations of the
parties, shall be decided under the laws of the State of New York.
19. EFFECTIVE DATE. This agreement shall be effective from the time it
is executed in New York (after previously having been executed by you) and
deposited in the United States mails for transmission to you.
MasterCard International, Incorporated
New York, New York
By: /s/ H. Eugene Lockhart
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H. Eugene Lockhart, President
and Chief Executive Officer
Date:
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ATTEST:
By: /s/ Michael J. Timko
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Name: Michael J. Timko
Title: Assistant Secretary
(Corporate Seal)
ACCEPTED AND AGREED: Colonial National Financial Corp.
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(Typed or printed name of licensee)
City and State Salt Lake City, Utah
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By: /s/ John L. Richards
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(Original signature of officer empowered to
enter into agreements for your
organization)
Name: John L. Richards
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(Typed or printed name of signing officer)
Title President/CEO
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Date 4/19/94
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(Date agreement signed by applicant)
ATTEST:
By: /s/ Julie Boyle
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(Signature of authorized attestor)
Name Julie Boyle
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(Printed or typed name of attestor)
Title Secretary
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(Affix your organization's seal here)