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EXHIBIT 10.13
REFERRAL FEE AGREEMENT
This Referral Fee Agreement (the "Agreement") is made this 27th day of June,
2000 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, California 90230, and The Compliance Company
Ltd. ("Compliance"), an Isle of Man corporation with its principal place of
business at 8-10 Malew Street, Castletown, Isle of Man, British Isles. Each of
the aforementioned parties is sometimes referred to individually as a "Party"
and collectively they will be referred to as the "Parties".
Whereas Solutions provides web design, database development, marketing,
financial services and transaction processing services to banks, corporations
and merchants conducting E-commerce over the Internet;
Whereas Compliance has relationships with banks and Internet merchants and seeks
to introduce such companies with E-commerce transactions to Solutions;
Whereas Solutions and Compliance wish to enter into a business relationship
whereby Compliance refers potential banks, clients and Internet merchants to
Solutions;
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Solutions and Compliance do hereby agree as follows:
1. NATURE AND TERM OF ENGAGEMENT
(a) Services. Compliance hereby agrees to introduce banks providing E-commerce
merchant banking services, and banks and Internet merchants requiring
E-commerce transaction processing services to Solutions. Such banks and
Internet merchants shall be considered "Compliance Referrals", unless
Solutions has a preexisting active working relationship with such bank or
Internet merchant. On a monthly basis (at the end of each calendar month),
Compliance shall submit to Solutions a list of each and every bank or
Internet merchant referred to Solutions during the previous month. All
entities on said list shall be deemed Compliance Referrals unless
Solutions objects in writing within five (5) working days that Solutions
has a preexisting active working relationship.
(b) Term. 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 lst day of the then current
term. Notwithstanding anything in this paragraph to the contrary, all of
Solutions' payment obligations to Compliance under this Agreement shall
survive termination or suspension of this Agreement.
(c) Exclusivity. This Agreement shall be non-exclusive and nothing shall
preclude either Party from entering similar agreements with other parties
providing similar services.
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2. FEES AND PAYMENT
(a) For each and every transaction with a value less than One Hundred United
States Dollars (US $100.00) processed by Solutions (and / or its agents
and assigns) on behalf of a Compliance Referral, Solutions shall pay to
Compliance a fee of two and half cents (US$.025).
(b) Where the average ticket price of transactions processed by Solutions (and
/ or its agents and assigns) on behalf of a Compliance Referral is One
Hundred United States Dollars (US $100.00) or greater, Solutions shall pay
to Compliance five percent (5%) of Solutions' processing fees earned from
such transactions, provided that the fees as a percentage of the gross
value of transactions under this clause shall not be less than 0.125%.
(c) The aggregate of all such fees shall be paid on a monthly basis (on the
15th day of each calendar month following the month in which the
transactions occurred).
(d) Solutions represents that its current Client Turnover exceeds US$5 million
per month and agrees to take all reasonable steps necessary to maintain
its Client Turnover at or above US$5 Million per month. The monthly fees
shall be based on Solutions' turnover and shall be paid to Compliance per
2(c) above once the Compliance Referral [per 1(a)] is activated.
(e) For each and every web site designed or redesigned by Solutions (and / or
its agents and assigns) on behalf of a Compliance Referral, Solutions
shall pay to Compliance ten percent (10%) of the amount charged by
Solutions to the Compliance Referral on the first fifty thousand dollars
($50,000), and fifteen percent (15%) on the amount charged by Solutions in
excess of fifty thousand dollars ($50,000). The aggregate of such fees
shall be paid within five (5) business days of receipt of payment by
Solutions.
(f) Each Party will be responsible for their own expenses. Provided, however,
that Solutions will reimburse Compliance for such pre-approved expenses as
it may from time to time incur at the request of Solutions.
(g) The Parties agree that work not contemplated hereunder shall be governed
by separate agreements as entered into by and between the Parties from
time to time.
3. REPRESENTATIONS AND WARRANTIES; INDEMNITIES
(a) Representations and Warranties. The Parties hereby represent and warrant
that (i) they have the full right to enter into this Agreement; (ii) that
they will act in accordance with all laws and regulations.
(b) Indemnification. Each Party agrees to fully indemnify the other Party for
any damage or loss including reasonable attorney's fees from the breach or
alleged breach of this Agreement or any of the representations and
warranties whether express or implied.
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4. GENERAL PROVISION
(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. Provided, however, Solutions will be responsible for
managing all client accounts and all activities related thereto.
(b) Assignment. Compliance may not transfer or assign any of its rights or
duties under this Agreement without the prior written consent of
Solutions, which consent shall not be unreasonably withheld.
(c) Taxes. Each Party shall report and pay all taxes imposed on its revenues
or income by any jurisdiction.
(d) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California.
(e) Integration and Amendment. This Agreement, along with any exhibits,
attachments or other documents affixed hereto or referred to herein,
constitutes the entire agreements 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. 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.
(f) 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.
(g) 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.
(h) 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 limitation, attorneys' fees and expenses
and court costs.
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(i) Survival of Representations and Warranties. All representations and
warranties of each Party contained herein shall survive the execution and
delivery of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Referral Fee Agreement
effective as of the 27th day of June, 2000.
SOLUTIONS AMERICA, INC. THE COMPLIANCE COMPANY LTD.
By: By:
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Floyd W. Kephart Christopher Compston
Title: Chairman & CEO Title:
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