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EXHIBIT 10.15
MERCHANT SERVICES AGREEMENT
This Merchant Services Agreement (the "AGREEMENT") is made and entered into by
and between Solutions America, Inc. ("SOLUTIONS"), a Delaware corporation with
its principal place of business at 600 Corporate Pointe, 12th Floor, Culver
City, CA 90230 and SGAA Ltd. ("CLIENT"), a Bahamian corporation with its
principal place of business at 5 George Street, P.O. Box 13037, Nassau, The
Bahamas. This Agreement is effective as of the date set forth below.
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties do hereby agree as follows:
A. Nature and Term of Engagement.
(i) Retention of Solutions. Client hereby retains Solutions to
provide on-line payment processing and reporting services
("Payment Processing Services"), as more particularly described
in the Merchant Guide attached hereto as Addendum A for any web
sites which may be owned, represented, managed, operated or
assigned by Client (the "Client Web Sites"). Solutions accepts
such engagement on the terms and subject to the conditions
hereinafter set forth and those terms and conditions set forth in
the Merchant Guide, which are incorporated herein as if fully set
forth herein. Solutions shall retain the right to fulfill its
obligations under this Agreement by using the services of third
parties.
(ii) Term. Subject to the termination rights set forth in Section 1 of
the Merchant Guide, the term of this Agreement shall be one (1)
year from the date hereof; provided, that this Agreement shall be
automatically renewed for additional one (1) year terms, unless
either party gives the other party written notice of its
intention not to renew at least thirty (30) days prior to the
last day of the then current term, in which event the last
effective date of this Agreement shall be the last day of the
then current term.
(iii) Exclusivity. By entering into this Agreement, Client appoints
Solutions as its exclusive agent to provide the Payment
Processing Services for all on-line purchase transactions
generated by any customer of the Client Web Sites (a "Customer").
(iv) Services Not Included. Client agrees and acknowledges that
under this Agreement Solutions will provide only the Payment
Processing Services. Solutions will not provide any debit card
processing, customer service or other "back office" support and
Client is solely responsible for all customer
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support services, including but not limited to receiving and
responding to billing inquiries and handling of retrieval
requests, chargebacks, creditbacks, refunds, credits, returns
and/or disputes.
B. Fees; Settlement and Payment; Reserve Account.
(i) Fees for Payment Processing Services. Client shall pay or cause
to be paid to Solutions fees for Payment Processing Services (the
"Payment Processing Fees") in the amounts set forth in Exhibit A
hereto.
(ii) Settlement and Payment. Pursuant to the Merchant Account
Agreement between Client and the bank that maintains the Client's
merchant account (the "Merchant Account Bank"), incorporated
herein by reference, Client acknowledges that the Merchant
Account Bank will receive all proceeds from transactions
submitted by Client and further acknowledges Client's obligation
to pay in full any and all obligations including but not limited
to all Merchant Account Bank fees and obligations, all
chargebacks arising in connection with transactions submitted by
it to the Merchant Account Bank and other fees in addition to the
Payment Processing Fees. All obligations of Client for, including
but not limited to, any bank discount fee, processing fee,
chargebacks, transaction or credit costs, legal fees, fines,
penalties or government assessments and any and all obligations
payable by Client (the "Client Obligations") shall be deducted
from all payments due to Client at the time of each payment.
Client hereby instructs Merchant Account Bank to retain all such
Client Obligations and to deposit same in such financial
institutions as may be required by the Merchant Account Bank, any
card association, transaction processor, Solutions, or other
party. To the extent that amounts payable to Client are not
sufficient to pay such obligations of Client described herein,
Merchant Account Bank may, at its option, debit the Reserve
Account (as defined below) to pay such obligations.
(iii) Net Client Payment. Pursuant to the payment terms of the Merchant
Account Agreement between Client and the Merchant Account Bank,
Solutions shall cause the Client's bank account held in its name
at the Merchant Account Bank (the "Client Merchant Account") to
be credited in the amount of all proceeds from transactions
submitted by Client net of the Payment Processing Fees, Reserve
Account, chargebacks and Client Obligations discussed herein. The
determination of the payment terms shall be made upon signature
of the Merchant Account Agreement.
(iv) Reserve Account. Pursuant to the Merchant Account Agreement, the
Merchant Account Bank may and shall deduct from each Client
payment a percentage of the gross amount processed by Client as
set forth in Exhibit A (the "Reserve Percentage"), which Reserve
Percentage the Merchant
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Account Bank will deposit in a demand deposit account in its name
and under its sole control (the "Reserve Account"). This Reserve
Account shall be maintained by the Merchant Account Bank on the
terms and conditions set forth in the Merchant Account Agreement.
(v) Right of Offset. At any time that an amount is due Solutions from
Client and Solutions does not obtain payment of such amount due
as provided in this Agreement, Solutions shall have the right to
apply or set off any amounts otherwise owed to Client by
Solutions hereunder, including, without limitation, any amounts
in the Reserve Account, to the amount owed by Client.
(vi) Currency. All payments hereunder shall be in U.S. dollars.
C. Notices. Except where specifically provided for to the contrary, all
notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed given: (i) if delivered personally; or,
(ii) three (3) days after mailed by certified or registered mail,
postage prepaid, return receipt requested; or, (iii) upon transmission,
if sent by prepaid telegram, telex or fax and a receipt of transmission
is obtained, in each case addressed to the party to receive notice, at
the address or fax number specified herein, or at such other address or
fax number as the parties may provide from time to time, in the manner
prescribed herein for the delivery of notices.
Solutions' address for receipt of notice is:
c/o Floyd Kephart
Chairman and CEO
Solutions America, Inc.
600 Corporate Pointe
12th Floor
Culver City, California 90230
Fax: (310) 665-7606
Client's address for receipt of notice is:
c/o Matt Petrocelli
President
SGAA Ltd.
5 George Street
P.O. Box 13037
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Nassau, The Bahamas
D. Counterparts/Faxed Signatures. This Agreement may be executed in two (2)
or more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument. In the
event of any variation or discrepancy between fully-executed copies of
this Agreement (including any exhibits and riders), Solutions' copy
shall control. Additionally, this Agreement may be executed by faxed
signatures, the delivery of which shall be binding and effective for all
purposes.
E. Authority. By executing this Agreement in the space provided below, the
person signing this Agreement on behalf of Client represents to
Solutions that Client's governing body or person(s): (i) has authorized
Client to enter into this Agreement and to assume the duties and
obligations set forth herein; (ii) has authorized the signatory hereof
to execute and deliver this Agreement on behalf of Client and to thereby
bind Client to the terms and conditions hereof; (iii) Client is legally
authorized to own, represent, manage, operate or assign the Client Web
Sites; and, (iv) Client has obtained all necessary, regulatory approvals
and certificates to provide any services it intends to offer Customers.
F. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California applicable
to agreements made and to be performed entirely in such state without
giving effect to the conflicts of laws principles thereof.
IN WITNESS WHEREOF, the parties have executed this Merchant Services Agreement
effective as of this ______________ day of _______________, 2000.
SOLUTIONS AMERICA, INC. SGAA LTD.
By: By:
---------------------------- --------------------------------------
Floyd W. Kephart Matt Petrocelli
Chairman & CEO President
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EXHIBIT A
1. PAYMENT PROCESSING FEES
Payment Processing Fees as defined in section B(i) of this Agreement
shall be computed as: % of gross amount of transactions processed plus
$0.35 per transaction.
2. RESERVE PERCENTAGE
Reserve Percentage as defined in section B(iv) shall be: _____% of gross
amount of transactions processed on a rolling six (6) month period.
3. VISA INTERNATIONAL, INC.
Under Visa International's Internet High Risk Monitoring Program,
merchants who are considered to be High Risk will be charged an initial
US$5,000 plus US$0.35 per approved transaction and an annual fee of
US$1,000 for this monitoring program.
4. CLIENT MERCHANT ACCOUNT INFORMATION
Bank Name: ________________________________________
ABA No.: ________________________________________
Depository Account No.: ________________________________________
5. CORPORATE STRUCTURE
In the event that Client requests or is subject to the requirement for a
company incorporated in a foreign jurisdiction, Solutions may assist in
the formation and administration of such a company on behalf of Client.
The fee for such services may vary depending on the jurisdiction of
incorporation of the company.
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ADDENDUM A
MERCHANT GUIDE
TERMS AND CONDITIONS
The following terms and conditions are part of the Merchant Services Agreement
(the "Agreement") pursuant to which Solutions America, Inc. ("Solutions") will
provide on-line payment processing and reporting services to clients with
respect to on-line purchase transactions generated by customers of the clients'
web sites. Capitalized terms used below that are not defined below shall have
the meanings provided in the Agreement. All references below to "this Agreement"
refer to the Agreement.
1. Termination/Suspension.
(a) Client Termination. Client may terminate this Agreement at any time
without further written notice if Solutions materially breaches any of
its covenants, representations and warranties contained in this
Agreement and such breach is not cured by Solutions within thirty (30)
days of receipt of written notice from Client regarding such breach.
(b) Solutions Termination. Solutions may terminate this Agreement:
(i) at any time without further written notice if Client materially
breaches any of its covenants, representations and warranties
contained in this Agreement and such breach is not cured by
Client within thirty (30) days of receipt of written notice from
Solutions regarding such breach;
(ii) at any time effective immediately upon receipt by Client of
written notice if Solutions reasonably believes that Client has
engaged, or is engaging, in any activities or omissions to act
that: (A) have subjected, are subjecting and/or will or may
subject, either Client, the Merchant Account Bank, the processor
for the Merchant Account Bank that processes authorized
transactions through the MasterCard International, Incorporated
("MasterCard") system, or VISA U.S.A. Inc. or VISA International,
Inc. ("Visa") system, or both, or their successors and assigns
(the "Card Processor"), or Solutions (including for purpose of
this paragraph any of its officers, directors, employees,
shareholders, affiliates or third parties providing services to
Solutions), to a fine or other civil or administrative penalty,
review, audit, heightened scrutiny, or change in administrative
or legal status; or, (B) have infringed, are infringing, and/or
will or may infringe on the rights (including without limitation,
property rights) of third parties;
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(iii) at any time without written notice if Client's Merchant Account
Bank ceases to process through an Internet capable and Solutions
approved Card Processor; or
(iv) at any time, with or without cause, upon sixty (60) days written
notice to Client.
(c) Survival. Notwithstanding anything in this Section 1 to the contrary,
all of Client's payment obligations to Solutions under this Agreement
shall survive termination or suspension of this Agreement.
2. Processing Procedures.
(a) Client Procedures; Batch Processing. Client will provide a check-out
for the purchase of goods, services, and/or content (the "Goods") by
Customers on a secure check-out link on Client Web Sites. Client will
require from each Customer that places an order for the purchase of
selected Goods ("Customer Order") from Client information consisting
of the Customer's name, e-mail address and password, credit or debit
card information, billing and shipping information and any other
information required by either Client or Solutions (the "Customer
Information"). Client will submit the Customer Information to
Solutions as part of the authorization process described in Section
2(b). Upon Client's receipt of authorization from its Card Processor
and shipment of the Goods described in the Customer Order to or in
accordance with the instructions of the ordering Customer, Client will
submit the Customer Information to Solutions for processing. Client
may hold a number of Customer Orders and submit a batch of Customer
Orders to Solutions for processing (the "Batch Processing"). At no
time shall Client submit Customer Information to Solutions for
processing prior to shipment of Customer Order.
(b) Filtering and Authorizations. Solutions will "scrub" the data
submitted by the Customer for authorization purposes, running such
data through its filters and credit card databases and making all
other customary reasonable efforts to identify fraudulent,
unauthorized or duplicate transactions. Solutions will then format the
data in a manner acceptable to Client's Card Processor and
electronically submit the Customer's authorization request to the Card
Processor.
(c) Reporting. Solutions will retain the Customer Information, and make
available certain of such data to Client in the form of various sales
and management reports and other related financial data as Solutions
may
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generate from time to time. These reports and data will be available
to Client via the Internet only (not in paper form).
(d) Availability of Processing Service. Solutions shall use commercially
reasonable efforts to maintain its Processing Services in operation at
all times (twenty-four (24) hours per day, seven (7) days per week and
three hundred and sixty-five (365) days per year); provided, however,
that Solutions shall have no liability whatsoever for its failure to
do so where such failure results from a cause delineated in Section 12
hereof, and in all other circumstances, Solutions' liability shall be
limited as specified in Section 10 hereof.
3. Programming Services.
Custom or individualized programming services beyond those included as part
of Payment Processing Services ("Programming Services") may be provided to
Client. Should Client request such Programming Services, Solutions may, in
its sole discretion, agree to perform such services at fees mutually agreed
upon at the time such services are to be performed.
4. Limited Liability for Inaccurate, Incomplete or Fraudulent Credit or Debit
Card Information.
Notwithstanding Section 2(b), Solutions shall have no liability to Client
for any inaccurate, incomplete, fraudulent or duplicate information
submitted, or transactions effectuated, by Customers, or the use of stolen
cards, or any damages, chargebacks or creditbacks resulting to or suffered
by Client or Customer from any of the foregoing unless and solely to the
extent that such damages are directly and solely attributable to Solutions'
gross negligence or willful misconduct. Solutions' liability under this
Section 4 shall be limited as specified in Section 10.
5. Representations and Warranties and Covenants of Client.
With full understanding that Solutions is expressly and directly relying on
the following representations and warranties and Client's covenants in
agreeing to enter into this Agreement and to provide services hereunder,
Client hereby makes the following representations and warranties to and
covenants with Solutions:
(a) Strict Compliance with Laws, Rules and Regulations. Client does, and
at all times during the term of this Agreement will, operate its
business and the Client Web Sites in compliance: (i) with all laws and
regulations applicable to Client's business, including, but not
limited to, the Federal Trade Commission Act of 1914 (the "FTC Act")
and the rules and regulations
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promulgated thereunder; (ii) with all of the rules and regulations
issued from time to time by Visa, MasterCard, or any other governing
credit card organization; and, (iii) with all contractual obligations
to, and rules and regulations issued from time to time by, its Card
Processor and its Merchant Account Bank.
(b) Advertising and Promotional Materials. On the Client's web site, and
in any advertising or promotional materials for such site, Client will
use its reasonable best efforts at all times during the term of this
Agreement to accurately, plainly and completely describe the products
or services it is offering for sale, the price and terms on which they
are being sold, the action(s) that must be taken to consummate a
purchase, the point at which a sale is final and irreversible, and any
rights a Customer may have to return, obtain a refund or terminate a
transaction.
(c) Must Offer Promoted Goods and Services. Client does, and at all times
during the term of this Agreement will, make all reasonable efforts to
timely provide all goods and/or perform all services advertised or
otherwise promised on the Client's web site, for the price and on the
terms advertised or promised.
(d) Customer Confidentiality. Client does not, and at all times during the
term of this Agreement will not, sell or transfer any information
supplied by or relating to a Customer, or use any such information for
any purpose other than: (i) completing the transactions for which it
was furnished or for responding to a retrieval request or Customer
complaint; (ii) internally within Client's company, its parent
company, or any wholly owned subsidiaries; or, (iii) in response to a
subpoena issued by a Court of competent jurisdiction and will not sell
or otherwise furnish such information to others, and otherwise, will
take reasonable steps to ensure the confidentiality of a Customer's
personal information.
(e) Libel, Intellectual Property, etc. The Client Web Sites do not, and at
all times during the term of this Agreement will not, contain any
material which is libelous, slanderous, defamatory, or which will
violate or infringe upon or will otherwise give rise to any adverse
claim with respect to any common law or other right of any person or
other entity, including, without limitation, patent rights, copyright
rights, trademark rights, service mark rights, trade name rights,
literary, artistic, and dramatic rights, idea submission rights,
privacy rights and all other civil, personal and proprietary rights.
Upon the request of Solutions, Client will cooperate with Solutions'
efforts to comply with the Digital Millennium Copyright Act.
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(f) Harmful Matter. The Client Web Sites do not, and at all times during
the term of this Agreement will not, contain any message or
communication of any kind which is harmful, violent, threatening,
abusive or hateful.
(g) Viruses, etc. The Client will use its reasonable best efforts to
insure that the Client Web Sites do not, and at all times will not,
contain any file or data stream which contains viruses, worms, "Trojan
horses" or any other destructive features, regardless whether damage
is intended or unintended.
(h) Use of Solutions' Services. Client will not use any of Solutions'
services in any manner, or in furtherance of any activity, which
constitutes a violation of any law or regulation or which may cause
Solutions to be subject to investigation, prosecution or legal action.
6. Client Web Sites Display of Terms and Conditions.
The Client Web Sites shall contain terms and conditions ("Client Terms and
Conditions") that govern the operation of the Client Web Sites, and which
clearly set forth the respective rights, duties and obligations of Client
and the Customer. Client shall be solely responsible for the creation,
legality and sufficiency of its Client Terms and Conditions. Solutions
shall have no duty to review, approve or edit the content of Client Terms
and Conditions.
7. Confidentiality.
(a) Confidential Information. Solutions and Client acknowledge and agree
that in the course of fulfilling their obligations hereunder, each
party may have access to information or material that is commercially
valuable to both companies and not generally known in the industry
("Confidential Information"). Confidential Information includes but is
not limited to: (i) any and all versions of proprietary computer
software and any documentation related thereto; (ii) technical
information concerning products and services, including product data
and specifications, know-how, formulae, diagrams, flow charts,
drawings, source code, object code, program listings, test results,
processes, inventions, research projects and product development;
(iii) any and all versions of any designs, patents, trademarks or
copyrightable works, discoveries, formulae, processes, manufacturing
techniques, trade secrets, inventions, improvements, ideas, business
plans; (iv) information concerning each party's business, including
cost information, profits, sales information, accounting and
unpublished financial information, business plans or strategies,
markets and marketing methods, customer lists and customer
information, sponsor lists and sponsor information, purchasing
techniques, supplier lists and supplier information
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and advertising strategies; (v) information concerning employees,
including salaries, strengths, weaknesses and skills; (vi) information
submitted by each party's customers, suppliers, employees, or
co-venturers for study, evaluation or use; or, (vii) any other
information not generally known to the public or by actual or
potential competitors of Solutions and Client, which, if misused or
disclosed, could reasonably be expected to adversely affect either
party's business.
(b) Non-disclosure. Solutions and Client acknowledge and agree that: (i)
all Confidential Information of each party is the sole and exclusive
property of such party and is regularly used by such party in the
operation and conduct of each of their respective businesses, and that
the unauthorized disclosure of Confidential Information would have a
material adverse effect on the business, operations and competitive
position of the party whose information was thus disclosed; (ii)
neither party will at any time divulge to any person or entity, orally
or in writing, directly or indirectly, in whole or in part, any
Confidential Information, without both parties' explicit prior written
consent; (iii) both parties will receive and maintain all Confidential
Information in strictest confidence using reasonable care; (iv) that
any violation or breach of this Agreement may result in significant
and irreparable injury, that a remedy at law may be inadequate, and
that, in the event of any such violation or breach, the parties, in
addition to any other relief to which they may be entitled, shall in
addition be entitled to temporary and permanent injunctive relief.
(c) Exception. Notwithstanding anything in this Agreement to the contrary,
neither party has any duty of non-disclosure with respect to
Confidential Information that: (i) was in their possession or already
known to them without an obligation to keep it confidential, before
such information was disclosed, is publicly available at the time of
disclosure or that becomes publicly available after disclosure other
than through breach of this Agreement or other wrongful act; (ii) is
disclosed by either party with mutual prior written approval; (iii) is
disclosed to either party by a third party who is not in breach of
their own obligation of confidentiality; (iv) either party develops
independently other than through breach of this Agreement, or (v) is
required to be disclosed under operation of law, or pursuant to
applicable law or court, administrative or governmental order.
(d) Survival. The provisions of this section shall continue for so long as
the either party remains in possession of Confidential Information and
shall survive the termination of this Agreement for any reason.
8. Intellectual Property.
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During the term of this Agreement, Solutions hereby grants to Client a
nonexclusive, royalty-free, limited license to use, display and reproduce
the trademarks, service marks, and logos of Solutions on its web site,
stationery or marketing/advertising materials solely to publicize the fact
that Solutions is handling the processing of the Client's online
transactions. No materials displayed by the Client may indicate or imply,
directly or indirectly, that Solutions endorses the Client's products or
services. Other than the limited right stated herein, the Client hereby
acknowledges and agrees that nothing in the Agreement, or any of the
documents or transactions referenced herein, shall be deemed to transfer,
assign, grant or license any right, title or interest of any kind in, and
that the Client shall at no time have or acquire any right or claim to, any
intellectual property generated, created, produced, purchased, owned by or
licensed to Solutions, including, without limitation, any rights in any
trademark, service mark, trade dress, photograph, videographic work,
audiovideographic work, text, program or other intellectual property
appearing in, on, at or in association with Solutions or any affiliated
site or advertisement thereof. Upon termination of this Agreement for any
reason, all right, title and interest in and to Solutions' intellectual
property shall remain with Solutions, Client shall have no further right to
the use thereof, and Client shall immediately cease the use of all such
intellectual property in any manner whatsoever.
9. Indemnification.
Notwithstanding anything else contained herein, as material consideration
to induce Solutions to enter into this agreement, Client hereby agrees to
indemnify, defend (with counsel reasonably acceptable to Solutions),
protect and hold harmless Solutions and its officers, directors,
shareholders, affiliated entities and persons, employees, agents,
representatives and attorneys (collectively "Representatives") from and
against any and all claims, causes of actions, demands, judicial and
administrative proceedings, liabilities, forfeitures, errors, damages,
costs and expenses (including without limitation, reasonable attorney's
fees and attendant costs and expenses, whether or not suit is filed or
proceedings instituted thereon), directly or indirectly arising in
connection with this Agreement or the various subject matters hereof, or
any breach or default in Client's performance of any of its obligations
hereunder, or Client's operation of its business or its maintenance and/or
operation of Client Web Sites, or the act or omission of any of Customers,
the Card Processor or the Merchant Account Bank, or any of Client's
partners, shareholders, officers, directors, employees, managers, members,
agents, representatives, affiliates, agents or representatives, whether or
not intentional or negligent, and whether or not covered by insurance.
10. Limitation of Liability of Solutions.
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IN NO EVENT SHALL SOLUTIONS OR ANY PERSONS OR ENTITIES ASSOCIATED THEREWITH
BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT OR THE SUBJECT MATTERS HEREOF (INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR LOSS OF
BUSINESS INFORMATION) EVEN IF SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. Because of the extreme difficulty of fixing actual damages
for any failure of Solutions to perform its obligations hereunder or from
any failure of Solutions to perform any obligations imposed by law, Client
agrees that Solutions' entire liability, and Client's exclusive remedy, for
any claim for damages against Solutions and all persons or entities
directly or indirectly affiliated therewith arising out of this Agreement
or the various subject matters hereof, or the performance or
non-performance by Solutions of its obligations hereunder, whether grounded
in contract or in tort, shall be limited to liquidated damages in the
amount of the consideration paid to Solutions by Client in connection with
the affected transaction, and no more. The provisions of this paragraph
apply even though the loss or damage, irrespective of cause or origin,
results directly or indirectly, either from performance or nonperformance
of obligations imposed by this Agreement.
11. Disclaimer of Warranty.
SOLUTIONS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. CLIENT ACKNOWLEDGES THAT THE SERVICES PROVIDED BY
SOLUTIONS HEREUNDER MAY NOT BE UNINTERRUPTED OR ERROR FREE.
12. Force Majeure.
(a) Events Beyond Solutions' Control. If Solutions cannot perform any of
its obligations due to events beyond its control, such failure to
perform shall not constitute a breach of this Agreement, and the time
provided for performing such obligations shall be extended by a period
of time equal to the duration of such events. Events beyond Solutions'
control include, but are not limited to, acts of God, war, civil
commotion, labor disputes, equipment failures, strikes, fire, flood,
earthquake or other casualty, shortages of labor or material,
government regulation or restriction, weather conditions, breaches or
failures to perform by third parties, technical problems, including
hardware and software crashes and other malfunctions, disruptions on
account of or caused by vandalism, theft, phone service
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outages, Internet disruptions, viruses, and mechanical, power or
communications failures.
(b) Change in Law. If, after the date of this Agreement, any law,
regulation, or ordinance, whether federal, state, or local becomes
effective which substantially alters Solutions' ability to perform
services hereunder, Solutions shall have the right to terminate this
Agreement, with notice, if reasonably possible, effective upon the
earlier of (i) the date upon which Solutions shall be unable to
provide its customary services hereunder, or (ii) thirty (30) days
following written notice.
13. General Provisions.
(a) Relationship Between Parties. The parties to this Agreement are
independent contractors and nothing in this Agreement shall make them
joint venturers, partners, employees, agents or other representatives
of the other party hereto. Neither party shall make any representation
that suggests otherwise.
(b) Assignment. Neither party may transfer or assign any of its rights or
duties under this Agreement without the prior written consent of the
other party, which consent shall not be unreasonably withheld;
provided, that Solutions may assign the Agreement to any affiliate of
Solutions or contract with third parties as provided in section A(i)
of the Agreement.
(c) Taxes. Each party shall report and pay all taxes imposed on its
revenues or income by any jurisdiction. If Solutions is required to
pay any such taxes on the revenues or income of the Client, the Client
shall immediately reimburse Solutions for the amount of such taxes and
all related interest, fines and penalties. The parties agree that
taxes in the nature of excise, sales or use taxes are not currently
imposed on the transactions contemplated under this Agreement. If such
taxes are hereafter imposed, the payment of such taxes shall be the
Client's responsibility. Solutions shall have the right to collect and
pay over taxes in the nature of an excise, sales or use tax on behalf
of the Client if reasonably required to do so by a taxing authority of
competent jurisdiction. If Solutions makes any such payment, the
Client shall immediately reimburse Solutions for the amount of any
such taxes and related fines, penalties and interest.
(d) Venue and Jurisdiction. The parties hereby irrevocably submit
themselves to the exclusive jurisdiction and venue of the state and
federal courts sitting in the State of California, for any legal
proceeding relating to this Agreement or the various subject matters
hereof. The parties hereto hereby
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waive and agree not to assert (by way of motion, as a defense or
otherwise) that any such proceeding is brought in an inconvenient
forum or that the venue thereof is improper.
(e) Arbitration. Any dispute, controversy or claim relating to this
Agreement or any breach or default in the performance of the terms and
conditions thereof shall be settled by arbitration in the State of
California, County of Los Angeles in accordance with the then-existing
arbitration rules promulgated by the American Arbitration Association.
The decision of the arbitrators shall be final and binding on the
parties, and judgment upon the award rendered by the arbitrators may
be entered in any court having jurisdiction thereof. Any arbitration
award shall include attorneys' fees for the prevailing party.
(f) Integration and Amendment. This Agreement, along with any exhibits,
attachments or other documents affixed hereto or referred to herein,
constitutes the entire agreement between the parties hereto relative
to the various subject matters hereof and may be amended or revoked
only by an instrument in writing signed by both parties; provided,
that, modifications or amendments to this Addendum shall become
effective thirty (30) days after the date first posted on the
Solutions web site unless Client's written objection to any amendment
or modification is received by Solutions prior to the effective date
of the same. The parties hereby agree that no prior agreement,
understanding or representation pertaining to any matter covered or
mentioned in this Agreement shall be effective for any purpose.
(g) Severability. If any term or provision of this Agreement shall be held
invalid or unenforceable to any extent under any applicable law by a
court of competent jurisdiction, the remainder of this Agreement will
not be affected thereby, and each remaining term and provision of this
Agreement shall be valid and enforceable to the fullest extent
permitted by law. To the extent that the provisions of such applicable
law may be waived, they are hereby waived to the end that this
Agreement is deemed to be a valid and binding agreement enforceable in
accordance with its terms.
(h) Waiver. No waiver by either party of the breach of any covenant,
condition or term of this Agreement shall be construed as a waiver of
any preceding or succeeding breach nor shall the acceptance of any fee
or other payment during any period in which either party is in default
be deemed to be a waiver of such default. All waivers must be in
writing and signed by the waiving party.
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(i) Attorney's Fees. If suit, action or arbitration is brought to enforce
or interpret any provision of this Agreement, or the rights or
obligations of any party hereto as they relate to the subject matter
of this Agreement, the prevailing party shall be entitled to recover,
as an element of such party's costs of suit, and not as damages, all
reasonable costs and expenses incurred or sustained by such prevailing
party in connection with such suit or action or arbitration,
including, without limitation, attorneys' fees and expenses and court
costs.
(j) Survival of Representations and Warranties. All representations and
warranties of Client contained herein shall survive the execution and
delivery of this Agreement.
(k) Waiver of Immunities. Each party irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its
revenues and assets (irrespective of their use or intended use), all
immunity on the grounds of sovereignty or other similar grounds from
(i) suit, (ii) jurisdiction of any court, (iii) relief by way of
injunction, order for specific performance or for recovery of
property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it
or its revenues or assets might otherwise be entitled in any
proceedings in the courts of any jurisdiction and irrevocably agrees,
to the extent permitted by applicable law, that it will not claim any
such immunity in any proceedings.
(l) Contractual Currency.
(i) Each payment under this Agreement will be made in the relevant
currency specified in this Agreement for that payment (the
"Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the
Contractual Currency will not be discharged or satisfied by any
tender in any currency other than the Contractual Currency,
except to the extent such tender results in the actual receipt by
the party to which payment is owed, acting in a reasonable manner
and in good faith in converting the currency so tendered into the
Contractual Currency, of the full amount in the Contractual
Currency of all amounts payable in respect of this Agreement. If
for any reason the amount in the Contractual Currency so received
falls short of the amount in the Contractual Currency payable in
respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay
such additional amount in the Contractual Currency as may be
necessary to
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compensate for the shortfall. If for any reason the amount in the
Contractual Currency so received exceeds the amount in the
Contractual Currency payable in respect of this Agreement, the
party receiving the payment will refund promptly the amount of
such excess.
(ii) Judgments. To the extent permitted by applicable law, if any
judgment or order expressed in a currency other than the
Contractual Currency is rendered (A) for the payment of any
amount owing in respect of this Agreement, (B) for the payment of
any amount relating to any early termination in respect of this
Agreement or (C) in respect of a judgment or order of another
court for the payment of any amount described in (A) or (B)
above, the party seeking recovery, after recovery in full of the
aggregate amount to which such party is entitled pursuant to the
judgment or order, will be entitled to receive immediately from
the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in
such other currency and will refund promptly to the other party
any excess of the Contractual Currency received by such party as
a consequence of sums paid in such other currency if such
shortfall or such excess arises or results from any variation
between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the
purposes of such judgment or order and the rate of exchange at
which such party is able, acting in a reasonable manner and in
good faith in converting the currency received into the
Contractual Currency, to purchase the Contractual Currency with
the amount of the currency of the judgment or order actually
received by such party. The term "rate of exchange" includes,
without limitation, any premiums and costs of exchange payable in
connection with the purchase of or conversion into the
Contractual Currency.
(iii) Separate Indemnities. To the extent permitted by applicable law,
these indemnities constitute separate and independent obligations
from the other obligations in this Agreement, will be enforceable
as separate and independent causes of action, will apply
notwithstanding any indulgence granted by the party to which any
payment is owed and will not be affected by judgment being
obtained or claim or proof being made for any other sums payable
in respect of this Agreement.
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(iv) Evidence of Loss. For the purpose of this Section 13(l), it will
be sufficient for a party to demonstrate that it would have
suffered a loss had an actual exchange or purchase been made.
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