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Exhibit 10.29
REFERRAL AGREEMENT
This REFERRAL AGREEMENT ("Agreement") is made on this 13th day of December,
1999 ("Effective Date") by and between NOVA Information Systems, Inc. ("NOVA"),
and Towne Services, Inc. ("Company").
RECITALS
NOVA is engaged in the business of providing credit and debit card transaction
processing services to merchants ("Program"). Company desires to refer its'
customers to NOVA for such services. Therefore, the parties agree as follows:
TERMS AND CONDITIONS
1. COMPANY RESPONSIBILITIES. Company will:
A. MARKETING. Use its best efforts to market NOVA's Program to its
customers and make information provided by NOVA concerning the
Program readily available to its customers. Company will maintain
promotional material, provided by NOVA, to be distributed to its
customers.
B. REFERRAL. Refer customers inquiring of Company about credit and/or
debit card processing services to NOVA. Company will forward the
name, address and telephone number of each such customer to NOVA.
Company acknowledges and agrees that NOVA may, within its sole
discretion, refer customers engaged in certain types of businesses to
an alternative provider of processing services.
2. NOVA RESPONSIBILITIES. During the term of this Agreement, NOVA will:
A. FOLLOW LEADS. NOVA will follow all leads with a phone call to the
prospective merchant within 72 hours of receipt of the referral.
B. APPLICATION. Assist prospective merchants in completing required
merchant application materials.
C. REVIEW. NOVA, in its' sole discretion, may accept or reject a
prospective merchant based on criteria NOVA deems prudent as part of
the Program, and approval and review of merchants will be solely
controlled by NOVA. Company understands and agrees that prospective
merchants will be permitted to participate in the Program only after:
(A) NOVA's approval of the merchant application, and (B) merchant's
execution of a Merchant Processing Agreement by and among the
merchant, NOVA, and a financial institution selected by NOVA to
provide settling and clearing of transactions.
D. FEES. Pay Company .24% of net monthly processed Visa/MasterCard sales
volume + $.05/item for core services merchants referred to NOVA and
.54% of net monthly processed Visa/MasterCard Sales volume plus
$.05/item for non-core services merchants that Company refers to NOVA
and NOVA approves as a Program merchant ("Referral Fee"). Such
Referral Fees will be paid monthly. Referral Fee amount is
predicated upon pricing described in Schedule A.
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3. TERM AND TERMINATION.
A. Term. This Agreement will become effective on the Effective Date, will
remain in effect for three (3) years ("Initial Term") and will
automatically renew for successive one (1) year periods ("Renewal
Term") until terminated pursuant to this Section.
B. Automatic Termination. This Agreement will terminate automatically and
immediately if any of the credit card associations (i.e., Visa U.S.A.
Inc. or MasterCard International Incorporated) prohibits NOVA from
providing credit and debit card processing services.
C. Termination Without Cause. Either party may terminate this Agreement
effective at the end of the Initial or any Renewal Term upon written
notice given at least ninety (90) days before the end of the term.
D. Termination With Cause. Either party may terminate this Agreement by
written notice upon the occurrence of an Event of Default.
E. Event of Default. Each of the following occurrences will constitute an
Event of Default under this Agreement:
i) Financial Instability. Either party: (i) files for bankruptcy,
receivership, insolvency, reorganization, dissolution,
liquidation or any similar proceeding; (ii) has a proceeding
instituted against it and such proceeding is not dismissed within
sixty (60) days; (iii) makes an assignment for the benefit of its
creditors or an offer of settlement, extension or composition to
its creditors generally; or (iv) a trustee, conservator, receiver
or similar fiduciary is appointed for that party or substantially
all of such party's assets.
ii) False Representation. Any representation or warranty made by
Company or any of its employees, officers, or directors proves to
have been false or misleading in any material respect as of the
date made, or becomes false or misleading at any time.
iii) Breach. Either party fails to observe any material obligation
specified in this Agreement, and such failure is not cured within
thirty (30) days of receipt of written notice thereof from the
non-breaching party. Notwithstanding the previous sentence, the
fourth such breach automatically will be deemed an Event of
Default without the opportunity to cure.
iv) Company Action. Company: (i) operates in an unsound, unsafe
manner; or (iii) engages in activities which may impose financial
risk to NOVA, or which result in undue economic hardship and/or
damage to the goodwill of NOVA.
v) Company Business. The occurrence of any material adverse change
in the nature or conduct of Company's business as it exists on
the Effective Date.
F. Certain Post-Termination Rights. No termination of this Agreement will
affect any right of NOVA under any Merchant Processing Agreement. All
Referral Fee payments will cease upon termination of this Agreement.
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4. CONFIDENTIALITY AND USE OF NAMES.
A. Confidentiality. Company and NOVA each agree that it will not use for
its own purposes, will not disclose to any third party, and will
retain in strictest confidence all information and data belonging to
or relating to the business of the other (including without limitation
the terms of this Agreement and information related to the Program or
merchants), and that each party will safeguard such information and
data by using the same degree of care that it uses to protect its own
confidential information. No party will be obligated to maintain the
confidentiality of information it is required to reveal in performing
its obligations under this Agreement.
B. Remedy. In the event of a breach of this Article IV, the parties
agree that the non-breaching party will suffer irreparable harm, and
that the amount of monetary damages would be impossible to calculate.
Thus, the non-breaching party will be entitled to injunctive relief in
addition to any other rights to which the non-breaching party may be
entitled, without the necessity of proof of actual damages.
C. Other Agreements. Any non-disclosure or confidentiality agreement
separately entered into between Company and NOVA will not be
superseded by this Article IV, and will remain in full force and
effect.
D. Use of Names. Company will not use NOVA's name or trademarks in any
promotional or marketing materials, nor will Company promote any of
NOVA's programs or services in any way, without NOVA's prior written
consent. Company will obtain NOVA's written consent before Company
produces or distributes any materials relating to the Program. Company
acknowledges and agrees that it has no rights to use NOVA's trademarks
and service marks without NOVA's prior written consent.
5. INDEMNIFICATION AND LIMITATION OF LIABILITY.
A. Indemnification. Company will indemnify and hold NOVA harmless from
and against any and all claims, losses (financial or otherwise),
damages, liabilities, costs, fees, increased taxes or expenses
(including without limitation, court costs and reasonable attorneys'
fees), which may be incurred or which may be claimed by any person or
as a result of acts or omissions of Company, its directors, officers,
employees or agents relating to the exercise of, or the failure to
exercise, Company's obligations under this Agreement. NOVA will
indemnify and hold Company harmless from and against any and all
claims, losses (financial or otherwise), damages, liabilities, costs,
fees, increased taxes or expenses (including without limitation, court
costs and reasonable attorneys' fees), which may be incurred or which
may be claimed by any person or as a result of acts or omissions of
NOVA, its directors, officers, employees or agents relating to the
exercise of, or the failure to exercise, NOVA's obligations under this
Agreement.
B. Limitation of Liability. The liability, if any, of NOVA under this
Agreement for any claims, costs, damages, losses and expenses for
which they are or may be legally liable, whether arising in negligence
or other tort, contract, or otherwise, will not exceed in the
aggregate the amount of referral fees paid to Company during the
preceding twelve (12) month period. In no event will NOVA or its
agents, servants, representatives or employees be liable for indirect,
special, consequential, punitive, or exemplary damages. Neither party
will be liable to the other for any failure or delay in its
performance of this Agreement in accordance with its terms if such
failure or delay arises out of causes beyond the control and without
the fault or negligence of such party
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6. MISCELLANEOUS.
A. General. Company may not assign this Agreement without the prior
written consent of NOVA and any unauthorized attempted assignment will
be null and void. This Agreement (other than any separate agreement
concerning confidentiality or non-disclosure) sets forth the entire
understanding of the parties relating to its subject matter,and all
other understandings, written or oral, are superseded. Except as
otherwise provided in this Agreement, this Agreement may not be
amended except in a writing executed by all parties. If any provision
of this Agreement is illegal,the invalidity of that provision will not
affect any of the remaining provisions, and this Agreement will be
construed as if the illegal provision is not contained in the
Agreement. This Agreement will be deemed modified to the extent
necessary to render enforceable the terms hereunder. No failure or
delay on the part of any party in exercising any right under this
Agreement will operate as a waiver of that right, nor will any single
or partial exercise of any right precede any further exercise of that
right. This Agreement is made in Georgia, and will be construed in
accordance with the laws of Georgia without regard to the principles
of conflicts of law.
B. Notices. All communications under this Agreement will be in writing
and will be delivered in person or by mail courier, return receipt
requested, addressed as follows: if to Company: Bauer F. Lowthers,
CFO. If to NOVA: NOVA Information Systems, Inc., One Concourse
Parkway, Suite 300, Atlanta,Georgia 30328, Attn: Barbara L. Kuhn, with
a copy to General Counsel at the same address. The parties may, from
time to time, designate different persons or addresses to which
subsequent communications will be sent by sending a notice of such
designations in accordance with this Section.
C. Survival. All agreements that by their context are intended to survive
the termination of this Agreement, including, but not limited to, the
confidentiality provisions of Article IV, the post-termination rights
of Article III, the liability and indemnification provisions of
Article VI, the attorney's fee provision and the dispute resolution
provisions of Article VI, will survive termination of this Agreement.
D. Dispute Resolution. Any dispute or claim arising out of, or in
connection with this Agreement will be settled by final and binding
arbitration to be held in Atlanta, Georgia in accordance with the
relevant rules of the American Arbitration Association ("AAA").
Judgment upon award rendered by the arbitrators may be entered in any
court having jurisdiction over: the award, the party against whom
enforcement is sought, or that party's assets. The procedures and law
applicable during the arbitration will be both the AAA rules and
internal substantive laws of Georgia (excluding any rules regarding
conflicts of the law). In such arbitration, the award of decision will
be rendered by at least a majority of the members of an arbitration
panel consisting of three (3) members, one (1) of whom will be
appointed by each of the parties hereto and the third appointed by the
other two (2) so-appointed arbitrators. All arbitrators will be
persons who are not employees, agents or former employees or agents of
any party. In the event that any party fails to appoint an arbitrator
within 30 days after submission of the dispute to arbitration, such
arbitrator will be appointed by the AAA.
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E. Attorney's Fees. Each party shall bear its own costs and expenses,
including attorney's fees, incurred in enforcing the provisions of
this Agreement.
NOVA INFORMATION SYSTEMS, INC. TOWNE SERVICES, INC.
By: /s/ Karen A. Murphy By: /s/ Bruce F. Lowther
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Name: Karen A. Murphy Name: Bruce F. Lowther
Title: Director - Alliance Sales Title: CFO
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