This Agreement is made on the 10th day of July 2003
BETWEEN:
(1) Total Horizon Inc. of 8631 Terrance Drive, El Cerrito, California, CA 04530
("Total Horizon"); and
(2) Interpaytech Limited of 70 JF Kennedy, CY1641 Nicosia, Cyprus
("INTERPAYTECH")
BACKGROUND:
A. Total Horizon has been licensed by Pay2 Limited to provide services to
process and collect payments through the Total Horizon/Pay2 Stored Value
Card Payment System,
B. INTERPAYTECH intends to market this system to its customers subject to the
terms and conditions set out below.
IT IS AGREED:
1. Definitions
1.1 "Confidential Information" shall include all business, financial and
operational in formation of a secret and proprietary nature relating
to the Services and each party's wider activities, including the
Project Materials, which may or may have been disclosed by a party to
the other party, subject to the provisions of Clause 9.3
1.2 "Employees" means permanent. temporary, full-time or part-time
employees of INTERPAYTECH and includes individuals who are independent
contractors engaged by INTERPAYTECH.
1.3 "Intellectual Property Rights" means all rights in inventions,
patents, trade marks, service marks, trade names, rights in designs,
copyrights, (including rights in computer software) rights in.
know-how, moral rights, rights in confidential information, rights in
databases, compilation rights and topography rights and all rights or
forms of protection of a similar nature or by having equivalent or
similar effect to any of these which may subsist anywhere in the world
(whether or not any of these is registered and including application
for registration of any such thing).
1.4 "Introduction" arm a "with purpose" meeting arranged by INTERPAYTECH
to facilitate the services specified in Schedule 1. For the avoidance
of doubt a casual social introduction without an arranged meeting does
not constitute a valid introduction.
1.5 "Project Materials" means any information (including text, numerics
and still moving images) or other materials created by INTERPAYTECH in
the course of, or for the purpose of. performing the Services
specifically in relation to Total Hori
1.6 "Services" means the services* specified in Schedule 1.
1.7 "Stored Value Payment System" The Pay2 Payment System which
facilitates the storing of money in and electronic wallet which is
physically represented by a prepay debit card and which will enable
the Customer to purchase good and services from Third Party Merchants,
as well as allowing transfer of stored value to other Card Holders;
1.8 "Term" means the period of time specified in Clause 4 of this
Agreement.
2. INTERPAYTECH'S Obligations
2.1 INTERPAYTECH will supply the Services to Total Horizon in accordance
with the terms and conditions of this Agreement.
2.2 INTERPAYTECH is entering into this Agreement as an independent
contractor Nothing in this Agreement shall be construed as creating a
relationship of master and servant, principal and agent, or any
partnership or joint venture between Total Horizon and INTERPAYTECH.
2.3 INTERPAYTECH shall not have, nor represent that it has, any authority
to enter into contracts for or on behalf of Total Horizon, and may
only refer to itself as "a Total Horizon affiliate" in a form and
manner first approved in writing by Total Horizon in connection with
the performance of the Services under this Agreement. INTERPAYTECH
shall not use or display the Total Horizon logos or trademarks, or
otherwise indicate any connection with Total Horizon except in
accordance with the provisions of this Agreement.
2.4 Each party shall at all times act in good faith and not do anything to
undermine the goodwill of the other party.
2.5 All Employees shall at all times remain the employees of, or
independent contractors engaged by, INTERPAYTECH and not employees of
Total Horizon and INTERPAYTECH shall be solely responsible for all
matters relating to the employment or engagement of the Employees,
including but without limitation all remuneration and all national
insurance and other contributions, required by law to be paid by an
employer in respect of such persons
2.6 It is a condition of this Agreement that INTERPAYTECH shall pay any
income tax or contributions required by any governmental authority,
including any medical, medicare or national insurance contributions
payable in respect of INTERPAYTECH'S income or the arrangement under
this Agreement and INTERPAYTECH will indemnify Total Horizon against
all claims, demands, actions, losses, damages and expenses (including
reasonable legal fees and expenses) which may be made against Total
Horizon in respect of such tax of other levies.
2.7 INTERPAYTECH shall ensure that the Employees we legally entitled to
perform the Service in such country as they may be required to perform
the Services under this Agreement, and INTERPAYTECH shall indemnify
Total Horizon against any claims, demands, action, losses, damages and
expenses (including reasonable legal fees and expenses) which may
arise out of or in connection with any claim that any Employee is not
so entitled.
3. The Fees
3.1 In consideration of the performance of the Services by INTERPAYTECH,
Total Horizon agrees to pay INTERPAYTECH'S fees as specified in
Schedule 2 ("the Charges").
3.2 Payment of fees and commissions by Total Horizon to INTERPAYTECH for
business generated for and on behalf of Total Horizon shall survive
termination of this Agreement. Specifically, the termination of this
Agreement shall not affect the payment of commissions and fees due to
INTERPAYTECH with respect to business generated by INTERPAYTECH for
and on behalf of Total Horizon as long as Total Horizon are processing
transactions for entities of clients generated on behalf of Total
Horizon by INTERPAYTECH.
3.3 The Charges shall be exclusive of Value Added Tax (if any).
4. Term
This Agreement shall commence from the date of last signature of this Agreement
and continue thereafter for a period of three (3) years, subject to termination
by either party in accordance with Clause 7. After the expiration of the
original three (3) year term of this Agreement, the Agreement will automatically
renew and shall continue until terminated by ether party with thirty (30) days
prior written notice.
5. Intellectual Property Rights
5.1 All intellectual Property Rights in the Project Materials shall vest
exclusively in Total Horizon.
5.2 Total Horizon warrants that information supplied to INTERPAYTECH
specifically for the preparation of the Project Materials will be true
and correct at the time and will not, either in whole or in part,
infringe the Intellectual Property Rights of a third party.
5.3 INTERPAYTECH agrees to indemnify Total Horizon against any loss,
damage, cost or expense (including reasonable solicitors' fees and
expenses) Total Horizon my suffer or incur arising out of any claim by
any third party that the Project Materials subsequently prepared by
INTERPAYTECH, either in whole or in part, infringe the Intellectual
Property Rights of a third party.
6. Restrictive Covenant
Total Horizon hereby covenants that:
(a) it will not enter into an agreement to provide a Stored Value
Payment System other than through INTERPAYTECH with any of the
merchants listed on the Restrictive list as supplied by
INTERPAYTECH to Total Horizon in written form from time to time
and agreed by Total Horizon as specific clients of INTERPAYTECH.
(b) it will not enter into an agreement to provide a Stored Value
Payment System other than through INTERPAYTECH to any merchant
which has been introduced to Total Horizon as specific clients of
INTERPAYTECH.
(c) Total Horizon will use its best endeavors to ensure its employees
keen the identity of INTERPAYTECH'S customers confidential and do
not use any information disclosed other than for the purposes for
which the disclosure is made.
(d) Total Horizon will not approach any Person employed or engaged by
in relation to INTERPAYTECH the Services without the -consent of
INTERPAYTECH.
7. Termination
7.1 Either party may terminate the Agreement by written notice if the
other is in breach of any of its material obligations under this
Agreement and fails to remedy such breach within 30 days of a written
notice to do so.
7.2 Either party may terminate this Agreement immediately and without
notice if.
a) The other enters into a composition with its creditors,
b) an order is made for the winding up of the other,
c) an effective resolution is passed for the winding up of the other
(other than for the purposes of amalgamation or reconstruction on
terms approved by the first party (such approval not to be
unreasonably withheld); or
d) the other has a received, manager, administrative receiver or
administrative appointed in respect of it.
7.3 Upon termination of this Agreement for whatever reason each party
shall return to the other party all the other party's Confidential
Information in its possession, custody or control.
8. Limitation of Liability
8.1 Subject to Clause 8.3, Total Horizon shall only be liable under this
Agreement for loss or damage arising directly out of
a) any breach of its obligations under this Agreement; or b) its own
negligence or willful misconduct.
8.2 Subject to Clause 8.3. and except in relation to the indemnities
contained in Clauses 2.6, 2.8 and 5.2, and any breach of Clause 9,
INTERPAYTECH shall only be liable under this Agreement for loss or
damage arising directly out of:
(a) any breach of its obligations under this Agreement; or
(b) its own negligence or willful misconduct.
8.3 Nothing in this clause 9 shall be constructed to exclude the liability
of either party for death or personal injury caused by its negligence.
8.4 Neither party shall be liable to the other or to any third party for
any indirect, special or consequential loss or damage arising out of
or in connection with this Agreement.
9. Confidentiality
9.1 No public announcement, press release, communication or circular
concerning this Agreement will be made or sent by INTERPAYTECH or by
Total Horizon without the prior written consent of the other party,
which "I not be unreasonably withheld.
9.2 Each party acknowledges that Confidential Information may be disclosed
to it or otherwise come to its attention. For the avoidance of doubt,
Confidential information is disclosed to, or otherwise comes to the
attention of a party if it is disclosed to such a party by the other
party. The parties agree and undertake that they will hold any
Confidential Information in complete confidence and will not disclose
it in whole or in part at any time to any third party, nor use
Confidential Information for any purpose other than, the performance
of their obligations under this Agreement.
9.3 Confidential Information shall not include information which
(a) at or prior to the time of disclosure by a party was known to the
other party as evidenced in writing, except to the extent that
such information was unlawfully appropriated;
(b) at or after the time of disclosure by a party becomes generally
available to the public other than through any act or omission on
the part of the other party;
(c) is received by INTERPAYTECH or Total Horizon from a third party
free to make such disclosure without breaching any legal
obligation;
(d) is required to be disclosed by law, court order or request by any
government or regulatory authority.
10. General
10.1 This Agreement, which includes the Schedules, constitutes the entire
agreement of the parties in relation to its subject matter and
supersedes and cancels any previous understandings. Commitments,
arrangements or representations whatsoever whether oral or written,
express or implied in relation to that subject matter. This Agreement
shall not be varied unless in writing signed by a duly authorized
representative of each party.
10.2 If any pad of this Agreement that is not fundamental. is found to be
illegal or unenforceable, such finding will not affect the validity or
enforceability of the remainder of this Agreement.
10.3 Neither party will be held liable for any loss or failure to perform
its obligations under this agreement due to circumstances beyond its
reasonable control.,
10.4 Any waiver by either party of a breach of any provision of this
agreement shall not be considered to be a waiver of any subsequent
breach of the same or any other provision thereof.
10.5 Any notices given by either party hereunder shall be given in writing
by the recipient at its address set out above (or such address as such
party may notify the other for the purposes hereof). Any such notice
shall be deemed to be delivered, if sent by first class post, forty
eight hours after posting; and, if sent by facsimile, at the time of
transmission, confirmed by a transmission report from the sender's
facsimile machine.
10.6 This Agreement shall be governed by and construed in accordance with
the laws of England, and both patties submit to the non-exclusive
jurisdiction of the English Courts.
10.7 The rights, duties and obligations of the Parties under this Agreement
may not be subcontracted, delegated, assigned or otherwise transferred
in whole or part, without prior written consent of the other party
10.8 Total, Horizon will enter into a separate agreement with each
Introduced party, which will define the obligations of the parties to
provide Services at a satisfactory level.
10.9 This Agreement may be executed in one or more counterparts, each of
which will be deemed an original but all of which together will
constitute one and the same instrument. For purposes of this
Agreement, the delivery of a counterpart signature by telephonic
facsimile transmission will be deemed the equivalent of the delivery
of an original counterpart signature.
IN WITNESS OF WHICH THIS Agreement has been duly executed by the parties.
Signed for and on behalf of
Interpaytech Limited
Signed______________________________
Position______________________________
Dated_________________________________
Signed for and on behalf of
Total Horizon Inc. _________________________
Signed______________________________________
Position____________________________________
Dated ______________________________________
SCHEDULE I
THE SERVICES
To introduce merchants to Total Horizon Inc for the purpose of exploring the
potential for those merchants to enter into formal written agreements to adopt
the Total Horizon/Pay2 payment system and related products.
SCHEDULE 2
THE CHARGES
Total Horizon will pay INTERPAYTECH 35% of the Net Revenue from all card
transactions and sales generated by each customer bought to Total Horizon as
part of an integrated solution including payment.
Net Revenue will be gross revenue from the direct card transactions and sales
received by Total Horizon in respect to specific merchants and customers brought
to Total Horizon by INTERPAYTECH minus Bank and Network charges and a charge for
the system, which will include any royalties payable. All deductible charges
will be defined either absolutely or, if variable, by a formulae with known
parameters and confirmed under payment agreement for each customer.
Total Horizon will also pay INTERPAYTECH a monthly fee of US $75,000 on the
first day of each calendar mouth with effect from 1st October 2003.