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EXHIBIT 10.15
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GENERAL MARKETING AGENT AGREEMENT
TOWNE SERVICES, INC., a Georgia Corporation ("Servicer") and the undersigned
("Agent"), in consideration of their obligations in this Agreement and intending
to be legally bound, agree as follows:
1. Definitions: For purposes of this Agreement:
a) "Customer" shall mean, a bank or holding company that meets
the qualifications and criteria applicable to such offering of
services by servicer for solicitation by Agent from time to
time. "Bank Marketing Agreement" shall mean the contract in
the form, and containing the terms and conditions (including
price and payment terms), established by Servicer from time to
time for the services provided to a "Customer".
b) "Territory" shall mean the states, countries, or locations
identified on Exhibit "A" hereto.
c) "Term" shall mean that period commencing on the date hereof
and lasting for a period of twelve complete months and any
subsequent twelve month renewal period.
2. Appointment: Subject to the terms of this Agreement, Servicer engages
Agent to solicit customers to enter into Bank Marketing Agreements with
Servicer for its services. Agent may solicit customers only with
respect to their proposed use of Towne Services, Inc. services in the
Territory. Servicer reserves the right, to change the terms and
conditions of its Bank Marketing Agreement at any time, and Servicer
agrees to provide 30 days notice to Agent of any substantive changes.
Agent acknowledges that this Agreement does not confer on Agent
exclusive rights in any other territory. Agent represents and warrants
to Servicer that it has the authority to enter into this Agreement and
to perform its terms fully.
3. Nature of Relationship: Agent shall be an independent contractor.
Nothing in this Agreement shall be construed to create any other
relationship. Agent is hereby advised that, as an independent
contractor, it has certain responsibilities under the federal and state
tax laws.
4. Responsibilities of Agent: The duties of Agent shall be to:
a) Use its best efforts to solicit Customers to enter into Bank
Marketing Agreements;
b) Conduct its business so as to maintain and increase the
goodwill and reputation of Servicer;
c) Pay all expense incurred by Agent in the performance of its
duties under this Agreement, including (1) local and
long-distance transportation expenses: and (2) expenses in
connection with the solicitation of Customers and the
operation of Agent's business, including telephone, delivery,
entertainment, and promotional expenses; and
d) Use only promotional material mutually agreed upon for
purposed of promotion of the Servicer's business.
5. Limits of Authority: Agent shall not, without prior written approval from
an authorized representative of Servicer, take any of the following
actions:
a) Incur any expense or obligation in the name of the Servicer;
b) Disseminate any printed material regarding the Licensed
Products or Servicer's business; or
c) Use Servicer's advertising and promotional guidelines.
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6. Payment of Commissions: Agent shall be compensated by Servicer for its
services solely on the basis of fees earned and collected on any Bank
Marketing Agreements for Customers located within the Territory.
Commissions shall be set forth in a Commission Schedule attached hereto
as Exhibit "B". The payment of any commissions to Agent shall be
subject to all of the terms and conditions of this Agreement.
7. Statements: Servicer shall mail Agent a monthly statement showing fees
earned. At no time shall Servicer be obligated to reimburse Agent for
any expenses unless it agrees to do so in writing.
8. Sales Support: Servicer shall provide sales support to agent including
promotional materials and sales representative in Territory as
reasonably required by agent.
9. Voluntary Termination: Prior to completion of the initial Term or any
renewal Term, either Servicer or Agent may terminate this agreement at
any time without cause by giving the other party one hundred twenty
days prior written notice. The payment of commissions shall continue
through the term or any Bank Marketing Agreement entered into pursuant
to this Agreement between Servicer and a Customer in the event of any
termination other than involuntary termination by either party.
10. Involuntary Termination: Either party may terminate this Agreement
immediately, without notice to either party for just cause. A
termination shall be deemed "for just cause" if the other party:
a) Breaches any provision of this Agreement;
b) Violates any law or regulation; or
c) Commits any willful or dishonest act that could
injure the other party.
11. Confidentiality: Agent acknowledges that Servicer has a proprietary
interest in the association of its agents and personnel and the
business of the customers with whom such agents and personnel interact.
Accordingly, Agent shall provide Servicer with the full benefit of all
work and contacts relevant to the business of Servicer throughout the
term of this Agreement. Agent shall maintain in strict confidence, and
shall not use or disclose except as required by law or legal process,
and as required to perform its duties for Servicer, all Trade Secrets
of Servicer. This obligation shall apply during and after the term of
this Agreement for so long as the pertinent information or data remain
Trade Secrets, and shall apply regardless of whether the Trade Secrets
are in written or tangible form. For purposes of this Agreement, a
Trade Secret is defined to consist of legally protected rights in
confidential information. Without limiting the generality of the
foregoing, Trade Secrets of Servicer include nonpublic information
regarding the Servicer, account invoices, training and educational
manuals, administrative manuals, and prospective customer leads
developed by Servicer regardless of whether computer or electronically
accessible "on-line". However, Trade Secrets do not include information
Agent possesses or acquires independently of Agent's activities or
duties as an agent of Servicer. The foregoing obligation shall continue
to apply for two years after termination of this Agreement.
12. Return of Materials: Upon the request of Servicer and , in any event,
upon the termination of Agent's engagement, Agent shall deliver to
Servicer all memoranda, notes, records, manuals, disks, or other
documents and media pertaining to Servicer's business or Agent's
activities or duties as a Servicer agent, including all copies,
extracts, summaries, and analyses thereof. This obligation shall not
apply to publicity distributed documentation, or internal business or
personal records of Agent's own creation that do not contain Servicer
Trade Secrets.
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13. Remedies: In the event of any breach by either party identified in
Section 10 of this Agreement, the resulting injuries to the other party
would be difficult or impossible to estimate accurately, but it is
certain that injury or damages will result to the business of the other
party. Both parties agree that, in the event of any such breach, the
non-breaching party shall be entitled, in addition to any available
legal or equitable remedies or damages, to an injunction to restrain
the violation or anticipated violation thereof. Should the
non-breaching party have any basis to seek such legal or equitable
action, the breaching party shall pay any and all attorney fees and
court costs that the other party may incur. The non-breaching party's
rights under this section shall be in addition to every other remedy
(equitable, statutory, legal or contractual) to which the non-breaching
party may be entitled.
14. Miscellaneous: No assignment by Agent or Servicer of this Agreement or
any commissions due hereunder shall be valid unless approved in advance
by an authorized officer of Servicer or Agent, as the case may be. No
modification or waiver of any provision of this Agreement shall be
binding on Servicer unless made in writing and signed by an authorized
officer of Servicer. This Agreement is governed by the laws of the
State of Georgia as it applies to a contract executed, delivered, and
performed in such state. This Agreement supersedes and replaces any
agreement previously entered into between Agent and Servicer.
Servicer's failure to enforce any provision of this Agreement shall not
constitute a waiver of any provision of this Agreement. The provisions
of this Agreement shall be deemed severable. In the event that any
provision of this Agreement is determined to be unenforceable or
invalid, such provision shall nonetheless be enforced to the fullest
extent permitted by applicable law, and such determination shall not
affect the validity and enforceability of any other remaining
provisions of this Agreement. This Agreement, together with all
schedules attached hereto and all writings incorporated herein by
reference, constitutes the entire agreement between Agent and Servicer
with respect to the subject matter of this Agreement.
Servicer: Towne Services, Inc. Agent:
By: By:
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Title: Title:
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Date: Date:
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EXHIBIT A
Towne Services will pay ___ % of initial bank license fees and ___% of the
ongoing revenue net of incremental processing expenses and sales commissions.