TOWNE SERVICES, INC.
BANK MARKETING AGREEMENT
Between
TOWNE SERVICES, INC.
And
(the "Bank")
Date:
TOWNE SERVICES, INC. ("TOWNE") offers automated accounts receivable
programs, as a working capital solution for businesses. The program products are
delivered to the merchants and clients who are users of TOWNE's products and
services (collectively hereinafter "Business"), and/or Bank via TOWNE's
electronic processing system technology. The above-referenced Bank desires to
participate in these programs and market them to its customers. Capitalized
terms not defined in this Agreement shall have the meaning set forth in the
Uniform Commercial Code.
The Bank and TOWNE agree as follows:
SECTION 1. THE TOWNE SERVICES PROGRAM
1.1 MARKETING AND OPERATION OF THE TOWNE SERVICES PROGRAMS. The Bank
hereby elects to participate in one or all of the TOWNE programs designated on
the schedules attached hereto ("the Program") in accordance with the guidelines
issued from time to time by TOWNE. The Bank agrees to provide TOWNE with a list
of the Bank's customers which the Bank believes would be appropriate candidates
to process transactions through the Program, and TOWNE agrees to assist the Bank
in marketing the Program to these customers. The Bank agrees to enter into a
Commercial or Retail version of the Processing Agreement, in the form then used
by TOWNE (a "Processing Agreement"), with TOWNE and the Businesses that agree to
participate in the TOWNE Programs through the Bank. TOWNE will assist each
Business in the installation of any and all hardware, software or materials used
in connection with the various Programs. TOWNE will provide maintenance and
support for each of the Program products. TOWNE will also notify the Bank of
complementary services or products TOWNE may offer or provide from time to time
in connection with the Program and will offer the Bank the opportunity to
purchase such services or products at TOWNE's then current rates. Bank will pay
an initial set-up fee in the amount of $_____________, due at the time of
execution of this Agreement. The services and products offered by TOWNE through
the Program, and the fees charged for such services and products, are set forth
on Schedule A for Retail, Schedule B for Commercial, and Schedule C for CashFlow
Manager. The Bank, by initialing each Schedule, agrees to pay the fees for the
services on the relevant Schedule. The Bank may opt to participate in the
CashFlow Manager Program, subject to the terms and conditions set forth in
Section 2 of this Agreement. TOWNE will update the Schedules 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, TOWNE
will supply the Bank with a reasonable supply of advertising displays, merchant
decals, and other promotional materials bearing the TOWNE 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
Program on promotional materials approved by TOWNE to
inform Bank customers that the Bank offers the 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 Program and the
corresponding trade names, service marks, trade marks, copyrights, etc., that
TOWNE may use with the Program from time to time are the property of TOWNE. The
Bank shall not infringe upon any of the foregoing, nor otherwise conduct itself
or use the service mark or TOWNE logo in such a manner as to create the
impression that the Bank's services are affiliated with or offered by TOWNE.
1.3 COMPLIANCE WITH LAWS AND INDEMNIFICATION. The Bank agrees to obtain
all necessary approvals and 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
TOWNE harmless from and against any and all liabilities, losses, costs, damages,
attorneys' fees, and expenses of whatever kind or nature (i) which TOWNE may
sustain or incur by reason of, or in consequence of, the Bank's failure to
obtain necessary approvals or to comply with such laws, regulations, or
ordinances, (ii) in connection with any disputes related to transactions which
are processed through the Program, or (iii) in connection with any applicable
rule requiring that records of transactions be maintained by the Bank or TOWNE
or any other person. The Bank is responsible for making its own credit decisions
and agrees to indemnify and hold TOWNE harmless against all claims, losses, or
damages relating thereto or relating to any claims brought by the Bank or its
customers. TOWNE will indemnify the Bank for TOWNE'S gross negligence or willful
misconduct in performance of this Agreement.
1.4 AUTHORIZATION FOR AUTOMATED CLEARING HOUSE TRANSACTIONS, DIRECT
DEPOSITS, ETC. The Bank hereby authorizes TOWNE to present automated clearing
house ("ACH") credit for the payment of invoices due from the Bank to TOWNE and
to present ACH debits or payment due the Bank from TOWNE for discounts, fees,
credits, or payments pursuant to the Program. The Bank's ABA Transit Routing
Number, Federal Tax Identification Number, and Demand Deposit Account Number
(when available) are as shown below the Bank's signature at the end of this
Agreement, and a voided blank check or deposit slip for such account is attached
hereto, or will be within 10 days hereof. The authority granted in this Section
1.4 shall remain in full force and effect until all fees, charges, and payments
due TOWNE are collected and until the Bank has notified TOWNE in writing of the
termination of such authorization, in such time and in such manner as to afford
TOWNE reasonable opportunity to act thereon, or until ten days after written
notice of termination.
* * * * *
SECTION 2. CASHFLOW MANAGER LICENSE.
2.0 By initialing schedule C, Bank hereby elects to participate in the
CashFlow Manager Program. This Section 2 applies only if the Bank elects to
license the CashFlow Manager software. If the Bank does not elect to license the
CashFlow Manager, this Section 2 shall have no applicability, and all other
terms and conditions of the Agreement shall continue in full force and effect as
if Section 2 did not appear in this Agreement.
2.1. GRANT OF LICENSE. Subject to the terms and conditions set forth in
this agreement, TOWNE hereby grants to the Bank (and to any branch offices
maintained by the Bank) and the Bank hereby accepts (a) the non-exclusive and
non-transferable right and license to offer the CashFlow Manager Program, as
hereafter defined, to the Bank's customers; and (b) the right and license to use
TOWNE's CashFlow Manager Program, software, trade names, service marks,
trademarks, copyrights, patents, electronic data processing methods, accounts
receivable forms, including forms and programs presently available and forms and
programs developed by TOWNE for use with the CashFlow Manager Program. Unless
the context denotes otherwise, the term "customer" means all current and
prospective customers of the Bank, other than financial institutions.
2.2. RESERVATION OF RIGHTS. The Bank acknowledges TOWNE's claimed
interest in and exclusive right to the CashFlow Manager Program and all
component parts thereof, including without limitation, software, trade names,
service marks, trademarks, copyrights, patents, electronic data processing
methods, accounts receivable forms, including forms
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and programs presently available and forms and programs developed by TOWNE for
use with the CashFlow Manager Program, manuals, bulletins, procedures or
supplements, devices and insignia TOWNE may use from time to time in conjunction
with the CashFlow Manager Program (hereinafter "the CashFlow Manager Program").
2.3. PROGRAM SERVICES. (a). GENERAL. TOWNE will install, setup and
maintain the computer software at one (1) site location designated by the Bank
for the Bank's CashFlow Manager Program. The Bank agrees that it will obtain or
use computer hardware, which meets the requirements specified by TOWNE. The Bank
also agrees to provide qualified personnel, either on the Bank's premises or
through contract with some other firm, sufficient to operate the CashFlow
Manager Program for the Bank's CashFlow Manager Program customers. Prior to
offering the CashFlow Manager Program to the Bank's customers, TOWNE will
provide onsite instruction to the Bank's employees or designated representatives
concerning the proper operation of the CashFlow Manager Program, and will
provide these persons with CashFlow Manager Program operating materials. The
Bank agrees that its employees or representatives will take such instruction as
TOWNE may from time to time reasonably request. In addition, TOWNE agrees to
install, setup and maintain the computer software and provide the training
described in this paragraph at additional site location(s) designated by the
Bank upon receipt of the Multiple Site Installation Fee provided for in Section
2.8 of this Agreement.
(b). OTHER SUPPORT. TOWNE will also provide the Bank and its employees
or designated representatives with CashFlow Manager Program training, forms and
other materials to assist the Bank in compliance with federal, state and local
law applicable to the CashFlow Manager Program. However, Towne does not
undertake the responsibility of advising the Bank of any laws, rules,
regulations, or interpretations affecting you, your customers, or your
participation in the CashFlow Manager Program.
2.4. CONFIDENTIALITY. The Bank acknowledges that the procedures,
electronic data processing methods, forms and techniques furnished by TOWNE as a
part of the CashFlow Manager Program and contained in the CashFlow Manager
software and manuals are unique and confidential. To protect the value of the
confidential information licensed to the Bank, the Bank agrees to retain in
confidence, and to require its employees, agents and representatives to retain
in confidence, all such information and know-how transmitted to the Bank by
TOWNE, for the duration of this Agreement and for a period of three (3) years
after its termination or expiration for any reason, provided that the duration
of these obligations for any confidential information that constitutes a "trade
secret" under the statutes of Georgia shall be unlimited. The Bank agrees not to
use the confidential material communicated to the Bank by TOWNE except for the
purpose and to the extent necessary for the operation of the CashFlow Manager
Program pursuant to the license granted herein. The CashFlow Manager
documentation and manuals will at all times remain TOWNE's sole property and
will promptly be returned to TOWNE upon the expiration or termination of this
Agreement.
TOWNE acknowledges and agrees that any information or data coming into
its possession concerning the Bank, its operations and its customers is unique
and confidential. TOWNE agrees to retain in confidence, and to require its
employees, agents and representatives to retain in confidence, all such
information and will not make use of the confidential material communicated to
TOWNE by the Bank except for the purpose and to the extent necessary for the
operation of the CashFlow Manager Program pursuant to this Agreement. TOWNE's
obligations under this paragraph shall continue for the duration of this
Agreement and for a period of three (3) years after its termination or
expiration for any reason, provided that the duration of these obligations for
any confidential information that constitutes a "trade secret" under the
statutes of Georgia shall be unlimited.
The obligations of the parties under this Section will survive the
expiration or a termination of this Agreement.
2.5. SOFTWARE MODIFICATIONS AND ALTERATIONS. TOWNE agrees that TOWNE
will furnish to the Bank, at no additional cost, any updates developed by TOWNE
for the CashFlow Manager software during the term of this Agreement. The Bank
agrees to timely implement any and all changes to the CashFlow Manager software
that are deemed necessary by TOWNE for the proper operation of the CashFlow
Manager Program. The Bank agrees that the
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CashFlow Manager software will be used in accordance with the instructions
contained in the instructional and operating information provided by TOWNE. No
modifications or changes will be made by the Bank with the CashFlow Manager
Program software unless written approval is first obtained from TOWNE. If
modifications or changes are made by the Bank, or its employees or
representatives, the Bank agrees that TOWNE will have the right to use such
changes and, at its option, to incorporate the changes into the CashFlow Manager
Program and to make them available to third parties.
2.6. OPERATING MATERIALS. The Bank agrees to purchase from TOWNE any
specialized forms that are required for use in conjunction with the CashFlow
Manager Program. TOWNE agrees to allow and assist other reputable and competent
printers selected by the Bank, at its expense, to reproduce or print the forms
required by the CashFlow Manager Program so long as such printers conform to the
standards or specifications established by TOWNE.
2.7. PROGRAM MARKETING MATERIALS AND OBLIGATIONS. TOWNE will make
standard promotional material available to the Bank at a reasonable cost. The
Bank agrees to solicit its selected creditworthy commercial and retail customers
via letter and/or brochure mailing at least once per year. During the term of
this agreement, the Bank also agrees that it will offer no other Program of a
similar nature to its customers.
2.8. LICENSE FEES; MULTIPLE SITE INSTALLATION FEES. In consideration of
the trademark, licenses and rights herein granted by TOWNE to the Bank, and in
consideration of the use of the trade names or trademarks, CashFlow Manager
Program and CashFlow Manager in TOWNE's confidential manuals and materials, the
Bank agrees to pay TOWNE any applicable fees and sales taxes, set forth on
Schedule C. License fees are payable upon the execution of this Agreement. Of
the License Fee, $300.00 is for the licensing, installation and use of the
software, and the balance represents consideration for the employee and customer
training, education and initial marketing Program setup and support. If the Bank
elects to install the CashFlow Manager Program at additional site location(s),
the Bank agrees to pay TOWNE a Multiple Site Location Fee for each such
installation to provide for TOWNE's cost of installing and maintaining the
software at such location(s) and providing the technical support and training
set forth in this Agreement.
2.9. ONGOING SUPPORT FEES; (A). VOLUME REBATES. As additional
consideration for TOWNE's initial and continuing marketing, technical and
Program support, the Bank agrees to pay TOWNE a percentage, set forth on
Schedule C, of the amount of the Initial Balance of the receivables purchased by
the Bank from each new CashFlow Manager customer and an ongoing support fee
equal to a percentage, set forth on schedule C, of the total discount fees
charged or taken by the Bank in each subsequent month with respect to "ongoing
purchases" of receivables from each CashFlow Manager customer. As used herein,
the term "Initial Balance" purchase means the first purchase of receivables from
a CashFlow Manager customer (or the first 30 days' receivables acquired by the
Bank if it either (i) acquires less than all of the CashFlow Manager customer's
receivables existing on the date of the first purchase of receivables, or (ii)
if such CashFlow Manager customer has no existing receivables which will be
purchased by the Bank until after the date of the first purchase of
receivables). "Ongoing purchases" means purchases of receivables from a CashFlow
Manager customer subsequent to the Initial Balance purchase.
(B). SUPPORT FEE VOLUME REBATES. TOWNE agrees to pay the Bank a
marketing rebate based upon the monthly volume levels of ongoing receivable
purchases made by the Bank from its CashFlow Manager customers. These volume
levels and the amount of the rebate percentage applicable to each volume level
as applied to the discount fees charged or taken by the Bank in a specific month
are as set forth on Schedule C.
2.10. REPORTING AND PAYMENT OF ONGOING SUPPORT FEES. The Bank agrees to
report to TOWNE each month, on forms supplied by TOWNE, the amount of
receivables purchased during the preceding month, and remit by check the fees
due to TOWNE under this Agreement. TOWNE reserves the right to audit the Bank to
verify the propriety of the amount of receivables reported by the Bank. All
ongoing support fees will be due and payable within twenty-five (25) days of the
invoice date.
2.11. ONGOING PURCHASE FEE OBLIGATIONS AFTER EXPIRATION OR TERMINATION.
As additional consideration for the license and services TOWNE provides in
connection with the CashFlow Manager Program, the Bank agrees to pay an
4
ongoing purchase fee ("OP Fee") with respect to each CashFlow Manager customer
for a period of twenty-four (24) months following the expiration or termination
of the CashFlow Manager Program if the Bank continues to offer an accounts
receivable financing program reasonably similar to the CashFlow Manager
("replacement program") to such customer. So long as the OP Fee is payable under
these circumstances, the Bank agrees to report to TOWNE each month, on forms
supplied by TOWNE, the amount of receivables purchased during the preceding
month, and remit by check the fees due to TOWNE under this section. All OP Fees
will be due and payable on or before the 25th day of each month for purchases
made in the preceding month.
TOWNE agrees that the Bank will have no OP Fee obligation if it does
not offer, or once it discontinues to offer, its replacement program to such
CashFlow Manager customer. TOWNE also agrees that the Bank will have no OP Fee
obligation with respect to new customers added to its replacement program
following a termination or expiration of the CashFlow Manager Program, or if the
termination of the CashFlow Manager Program arises out of TOWNE's uncured
default in obligations to the Bank under this Agreement. The OP Fee provided for
in this section shall be calculated in the same manner as the ongoing support
fees provided for in Section 2.9, including any applicable volume rebate
provisions.
2.12. PROGRAM SOFTWARE; LIMITED WARRANTY. As additional consideration
for this license, the Bank agrees not to reproduce copies of the CashFlow
Manager software except to the extent required to operate its CashFlow Manager
Program.
(A). PROGRAM SOFTWARE AND DOCUMENTATION. TOWNE warrants the physical
software media and documentation to be free of defects in materials and
workmanship and that each will substantially conform to the specifications and
applications set forth in TOWNE's documentation during the term of this
Agreement, provided it is used with computer hardware which meets minimum
specifications as determined by TOWNE during the term of this Agreement.
However, TOWNE makes no representation or warranty that the software or
documentation is "error-free" or meets any user's particular standards,
requirements or needs. If TOWNE receives notice of any defects in the software
from the Bank, TOWNE will replace the defective software media or documentation.
The entire and exclusive liability and remedy for breach of this
limited warranty is limited to replacement of the defective software or
documentation, and TOWNE will have no liability or responsibility to the Bank or
to any entity or person with respect to any claim for or damages for any
indirect, special or consequential damages in any manner arising out of, or
connected with the sale, the use or the anticipated use of the Program software
and documentation referred to herein, or for damage caused or alleged to be
caused directly or indirectly by the computer software or documentation
furnished by TOWNE, including but not limited to the interruption of service,
loss of business or anticipated profits or consequential damages resulting from
the use or operation of the software.
If TOWNE is unable to cure the material defects in the software or
documentation within a reasonable period, the Bank has the option to terminate
the CashFlow Manager Program upon written notice and receive a refund of all
License fees paid by the Bank prior to such termination. Thereafter, the
termination provisions of Section 3.8 apply.
TOWNE SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, OR
CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY
OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ALL OTHER IMPLIED TERMS ARE EXCLUDED.
(B). PROGRAM SERVICES. TOWNE represents that each of its employees or
representatives assigned to perform marketing, technical support or data
processing services will have the proper skill, training and background so as to
be able to perform in a competent manner the services described in this
Agreement; provided, however, the Bank agrees that TOWNE will not be liable for:
(i) any indirect, special or consequential loss or damage, such as loss of
anticipated revenues or other consequential economic loss in connection with or
arising out of any unintentional breach
5
of this agreement; (ii) any errors in judgment or mistakes that may be made in
good faith when acting on the Bank's behalf; or (iii) any delay in the
performance of TOWNE's duties caused by strike, lawsuit, riot, civil
disturbance, fire, shortage of supplies or materials or any other cause
reasonably beyond TOWNE's control.
THE BANK HEREBY AGREES TO WAIVE AND RELEASE TOWNE FROM ANY CLAIM OR LIABILITY
FOR ERRORS OR MISTAKES MADE IN GOOD FAITH OR FOR ANY SUCH CONSEQUENTIAL
LOSS OR DAMAGE AS SET FORTH IN THIS SECTION.
2.13. PROCEDURES UPON TERMINATION. Upon the expiration or termination
of this agreement for any cause, the Bank agrees to immediately discontinue the
use of, and return to TOWNE, all material constituting the CashFlow Manager
Program, including, but not limited to all trade names, trademarks, service
marks, copyrights, patents, computer software programs, manuals, materials,
signs, and forms of advertising indicative of the CashFlow Manager Program. If
the Bank fails or refuses to comply with the provisions of this Section 2.13,
the Bank agrees to reimburse TOWNE for all costs, including reasonable
attorney's fees and other expenses incurred in connection in the enforcement of
this provision. If the Bank terminates the CashFlow Manager Program, but elects
to continue an accounts receivable financing program of a nature similar to
CashFlow Manager, you may be responsible for any OP Fee as set forth above, and
the Bank warrants that such replacement program will be or has been developed
without the use of any of TOWNE's confidential or proprietary information
covered by this Agreement.
* * * * *
SECTION 3. GENERAL
3.1 BUSINESS CONSULTING AND MARKETING SERVICES. TOWNE will provide the
Bank with the services of one or more Business Development Managers who will
assist the Bank in the marketing of the Program to the Bank's customers in
accordance with marketing plans developed by the Bank and TOWNE. This includes,
but is not limited to, the providing of telemarketing services to customers
selected by the Bank, customer presentations, and other services related to the
Bank's approval of the customer for the Bank's Program. Any fees associated with
the foregoing will be mutually agreed upon, in writing, prior to the provision
of such services by TOWNE. The Bank acknowledges that the Business Development
Manager's services are not exclusive to the Bank, but that such services will be
provided in accordance with schedules mutually acceptable to the Bank and the
Business Development Manager. In the event of any disagreement or
dissatisfaction arising concerning the services rendered to the Bank by the
Business Development Manager, TOWNE agrees that TOWNE will replace such Manager
with another Manager acceptable to the Bank within a reasonable period if, after
notice from the Bank, such disagreement or dissatisfaction with the Business
Development Manager cannot be resolved.
3.2 EXCLUSIVE AGREEMENT; CONFIDENTIALITY. While this Agreement is in
effect, the Bank shall not move existing customers to another product similar to
TOWNE's CashFlow Manager, Retail, or Commercial products, as described herein.
The Bank acknowledges that this Agreement and the related materials provided by
TOWNE pursuant to this Agreement (the "Confidential Materials") consist of
confidential information of TOWNE. 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, for the duration of this Agreement
and for a period of three (3) years after its expiration or termination for any
reason, provided that the duration of these obligations for any confidential
information that constitutes a "trade secret," under the statutes of Georgia,
shall be unlimited.
TOWNE acknowledges and agrees that any information or data coming into
its possession concerning the Bank, its operations and its customers is unique
and confidential. TOWNE agrees to retain in confidence, and to require its
employees, agents and representatives to retain in confidence, all such
information and will not make use of the confidential material communicated to
TOWNE by the Bank except for the purpose and to the extent necessary for the
performance of this Agreement. TOWNE's obligations under this paragraph shall
continue for the duration of this Agreement and for a period of three (3) years
after its expiration or termination for any reason, provided that the duration
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of these obligations for any confidential information that constitutes a "trade
secret," under the statutes of Georgia, shall be unlimited.
Notwithstanding the above, if TOWNE is provided with any nonpublic
personal information, as that term is defined under Title V of the
Gramm-Leach-Bliley Act (Pub. L. 106-102; 15 U.S.C. 6801 et seq.), in the
performance of this Agreement on behalf of the Bank, it shall maintain the
confidentiality of such information.
The obligations of the parties under this Section will survive the
expiration or a termination of this Agreement.
3.3 NOTICES. TOWNE may modify the prices and terms set forth on
Schedule A, B, or C 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 under the signature of the applicable party or to such other
place or places as either party hereto shall designate by written notice to the
other.
3.4 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 TOWNE 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 TOWNE which the Bank may use with its customers is
provided by TOWNE solely for the Bank's benefit; the Bank is not obligated to
use any such agreement. The Bank further acknowledges that TOWNE does not
guarantee, and is not responsible for ensuring, that any agreements supplied by
TOWNE that the Bank may enter into with its customers complies with laws and
regulations applicable to the Bank. The Bank acknowledges that THE BANK HAS AN
INDEPENDENT RESPONSIBILITY TO CONSULT ITS OWN LEGAL AND ACCOUNTING ADVISERS WITH
RESPECT TO THE ENFORCEABILITY AND ACCOUNTING TREATMENT OF ANY SUCH CUSTOMER
AGREEMENTS AND TO ADVISE ITS CUSTOMERS TO SIMILARLY CONSULT PROFESSIONALS WITH
RESPECT TO THE ENFORCEABILITY THEREOF. The cumulative liability of TOWNE to the
Bank for all claims relating to the 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 TOWNE hereunder. In no event shall
TOWNE 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 TOWNE 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.
3.5 THIRD PARTY PROVIDERS. The Programs offered to the Bank and
Business by TOWNE may or may not have services that are fulfilled by Third Party
Providers ("Providers"). TOWNE reserves the right to replace Providers from time
to time as deemed appropriate solely at the discretion of TOWNE. However, TOWNE
does not by anything herein or in any assignment or otherwise assume any of the
Providers obligations under this Agreement, and TOWNE shall not be responsible
in any way for the performance by the Providers of any of the terms and
conditions thereof. If requested, the Bank and the Business agree to execute any
forms necessary in connection with Provider changes. Neither the Bank nor the
Business may make Provider changes without the prior written consent of TOWNE.
It is the responsibility of the Bank and Business to arrange for their own
Internet Service Providers and each shall be responsible for their respective
costs and charges associated with obtaining and using such internet services.
3.6 REPRESENTATIONS AND WARRANTIES. The parties hereto each represent
and warrant to each other that (i) each party is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or chartering, (ii) the individual executing this Agreement has
the legal right and authority to execute this Agreement and to so bind the party
which he or she represents, (iii) each party has the full corporate power,
authority and legal right to
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execute, deliver and perform this Agreement, (iv) this Agreement has been duly
authorized, executed and delivered by such party, and (v) this Agreement is the
legal, valid, and binding obligation of such party, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting the rights of creditors generally, and subject to general principles
of equity.
3.7 GENERAL. This Agreement will be deemed to have been made and
delivered in the State of Georgia. The validity, performance and all matters
relating to the interpretation and effect of this agreement will be governed by
the laws of the State of Georgia, without regard to conflict of laws rules
applied in the State of Georgia. This Agreement may be executed in one or more
counterparts. Promptly upon request by TOWNE, 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
TOWNE'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
TOWNE are independent contractors, and nothing contained herein shall be deemed
to constitute either the Bank or TOWNE as agent for the other. Nothing herein
shall be construed to create a partnership or joint venture between the parties.
This Agreement shall be binding upon the successors of the Bank and TOWNE but
may not be assigned by either party without the written consent of the other,
except that TOWNE may assign this Agreement to any subsidiary or affiliate or
pursuant to a merger, sale of substantially all its assets, or similar
transaction without such consent. 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 (except any lease or rental
of the Program point-of-sale terminal which shall be governed by the terms of a
separate rental or lease agreement applicable thereto). All amounts which are
due and not paid to TOWNE as provided anywhere in this Agreement will thereafter
bear interest at the rate of eighteen percent (18.0%) per annum or the highest
legal rate permitted by applicable law, whichever is greater. The prevailing
party in any lawsuit or arbitration proceeding brought under this Agreement
shall be entitled to reasonable attorneys' fees and costs.
3.8 TERMINATION. The initial term of this Agreement shall be for a
period of three (3) years. The Agreement will be automatically renewed for
additional three-year terms unless either party gives written notice to the
other party not to renew the Agreement at least ninety (90) days prior to the
scheduled termination date. If either TOWNE or the Bank defaults in the
performance of any material obligation under this Agreement, and this default
continues for a period of thirty (30) days after written notice is given by the
non-defaulting party, then the non-defaulting party will have the right, at its
option, to terminate this agreement by giving written notice of such
termination. From and after such effective date of termination, for any reason,
the Bank shall cease processing sales through the Program, shall cease
displaying the service marks, symbols, and names related to the Program, and
shall promptly return to TOWNE all materials relating to the Program. If
termination is due to an uncured, material breach by either party in its
obligations hereunder, the non-breaching party may recover the actual costs of
enforcing this Agreement, including court costs and reasonable attorney's fees
to the prevailing party if the issue goes to court All obligations of the Bank
incurred or existing under this Agreement as of the date of termination shall
survive such termination.
3.9 NON-SOLICITATION OF TOWNE'S EMPLOYEES. The Bank agrees not to hire
or engage as an independent contractor, any of TOWNE's employees or independent
contractors during the term of this Agreement or for a period of twelve months
after the termination of their respective employment or independent contractor
relationships with TOWNE, as applicable.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE.]
8
IN WITNESS WHEREOF, TOWNE and the Bank have executed this
Agreement as of the date set forth on the first page of this Agreement.
THE BANK:
TOWNE SERVICES, INC.
________________________________________
(Please print or type name of Bank)
By: By:
_____________________________________ _______________________________
Name: Name:
Title: Title:
MAILING ADDRESS: MAILING ADDRESS:
3950 Johns Creek Court
______________________________________ Suite 100
Suwanee, Georgia 30024
______________________________________
_______________________________________
ABA Transit Routing No . _______________________
DDA No. _____________________________________
(Please attach a voided check or deposit slip)
Federal Tax I.D. No. ____________________________
PROGRAMS SELECTED:
Retail Program [ ]
Commercial Program [ ]
CashFlow Manager [ ]