AGENCY AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of this 2nd day of June, 2000 by and
between Xethos Group Inc, formerly known as GS Telecom Limited of Enterprise
House, Ocean Village, Southampton, SO14 3XD, (hereinafter referred to as Xethos)
and ARGONET PAYMENT SYSTEMS LIMITED, and its Affiliates (collectively "APSL") a
corporation duly incorporated under the laws of the British Virgin Islands.
BACKGROUND
WHEREAS, Xethos knows of and has contacts directly and indirectly with
certain merchants and Independent Sales Organisations who collectively also have
contacts directly and indirectly with certain other merchants and Independent
Sales Organisations (collectively "Contacts") who may desire to enter into a
business relationship with APSL, including but not limited to the provision by
APSL of a range of services, including but not limited to, credit card
processing, trust services, investment advice and services, depositing and
investing funds, and general banking and advisory services (collectively
"Services"); and
WHEREAS, Xethos intends to Introduce (as hereinafter defined) Contacts
to APSL; and
WHEREAS, APSL desires to, and is capable of, providing Services to all
Contacts within its existing operations and desires to induce Xethos to
Introduce Contacts to APSL for the purpose of permitting APSL to provide
Services to Contacts.
NOW, THEREFORE, in consideration of the various covenants and promises
contained herein, in addition to other consideration, the receipt; and
sufficiency of which are hereby acknowledged, the parties agree as follows:
GLOSSARY
Capitalised terms used in this Agreement and not otherwise defined
shall have the meaning set forth below:
"Affiliate" means any person (whether natural or legal) that controls, is
controlled by, or is under common control with the relevant party. For purposes
hereof, the term "control" means the legal or beneficial ownership of more than
fifty percent (50%) of the capital or votes of the relevant person, or the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of any such person whether through
ownership of voting securities, by contract or otherwise.
"Initial Term" shall have the meaning set forth in Section 4.1.
"Introduce" or such conjunction thereof as the context may require shall have
the meaning set forth in Section 2.1.
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ARTICLE 1
Services
1.1 Scope of services. During the Initial Term of this Agreement and any
Renewal Terms, Xethos shall have the right to Introduce Contacts to
APSL that may be interested in having APSL provide Services. For
purposes of this agreement, "Introduce" ( or such conjugation thereof
as the context may require ) shall mean for Xethos or any of its
affiliates, subsidiaries, officers, directors, employees, agents,
representatives or attorneys to make contact, in writing or verbally,
with a person or entity or their representatives. An introduction shall
also include Introductions made by Contacts Introduced by Xethos with
or without the knowledge or participation of Xethos which result in the
entering of a business relationship between APSL and such person or
entity Introduced by such Introduced Contact. In the event a Contact
Introduced by Xethos or a Contact Introduced by a contact enters into a
business relationship of any kind with APSL then such contact shall be
deemed to be an " Introduced Contact " by Xethos and shall be covered
by the terms of this Agreement, including without limitation, Article
3.
1.2 Independent Contractor. In the performance of this Agreement it is
mutually understood and agreed that both parties are at all times
acting and performing a independent contractors. This Agreement is not
intended to make either party a partner, employee of, or joint venturer
with the other party.
ARTICLE 2
Compensation
2.1 Xethos Fee: In consideration of making Introductions, APSL agrees to
pay Xethos a maximum of 0.5% of the gross merchant sales volume
processed by APSL for all Introduced Contacts for which APSL performs
authorization, capture and settlement processing services. The level of
Xethos fees will be scaled to the overall fee payable by each
introduced contact. Any additional fees paid to Xethos for Services
provided by APSL for Introduced Contacts shall be mutually agreed by
APSL and Xethos. The above fees collectively shall be referred to
herein as the "Xethos Fee".
2.2 Financial Reporting. APSL agrees to supply Xethos with a monthly
accounting, certified as to truth and accuracy by a corporate officer
of APSL, in sufficient detail in the opinion of Xethos to determine the
accuracy of the Xethos Fee. In the event of a question by Xethos,
Xethos shall have the right to cause its accounting firm to audit APSL
and its Affiliates to determine the amount of the Xethos Fee.
2.3 Sale of Portfolio. In the event APSL desires to sell, transfer or
convey any of its rights to provide any Services to any Introduced
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Contacts, it may do so only with the written consent of Xethos. In the
event of such a sale, transfer or conveyance, all proceeds or other
compensation received by APSL shall be divided equally between the
parties hereto.
ARTICLE 3
Term and Termination
3.1 Initial Term and Renewal. The initial term of this Agreement shall be 2
years, beginning on the date hereof (the "Initial Term"). At the
completion of the Initial Term, Xethos shall have the option to renew
the Agreement for a further 1 year upon the delivery of written notice
to APSL prior to the expiration of the Initial Term.
3.2 Grounds for Termination. Xethos may terminate this Agreement if APSL
materially fails to perform its obligations to Xethos or any Introduced
Contact. Furthermore, either party may immediately terminate this
Agreement if the other party, or any of the other party's Affiliates
involved in providing any Services under this Agreement is convicted of
fraud or any other crime of moral turpitude, including a crime
involving the corruption of state officials.
ARTICLE 4
Indemnification
4.1 Indemnification by APSL. APSL agrees to indemnify, defend and hold
Xethos and its subsidiaries, affiliated and related entities, and each
of their officers, directors, employees, agents and attorneys harmless
from and against any and all damages or other losses ( including,
without limitation, attorneys ` fees and costs ) arising out of any
claim ( threatened or actual, fixed or contingent, known or unknown ),
lawsuit, judgement, arbitration or other proceedings resulting from any
breach by APSL of its obligations, representations or warranties
hereunder, or as a result of the breach of its obligations to any
Introduced Contact.
ARTICLE 5
Miscellaneous
5.1 Notice. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered by
hand, by facsimile or telecopier transmission ( and a transmission
confirmation is received by the sender ), or by a recognised
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international or overnight courier, to the persons at the addresses set
forth below (or at such other addresses as may be provided hereunder),
and shall be deemed to have been delivered as of the date so de-
livered.
If to Xethos: Sam Lupton
Enterprise House
Ocean Village
Southampton
SO14 3XD
If to APSL: John Mitchell
2nd Floor, 14-16 Regent Street,
London SW1Y 4PH
England
The parties may change the addresses to which notice shall be sent by notice as
stipulated in this Section 6.3
5.2 Construction. The section numbers and captions of the articles of this
Agreement are inserted only as a matter of convenience and are in no
way intended to define or limit the scope or intent of such articles or
affect this Agreement. Unless the context otherwise requires, all
section and article references contained in this Agreement shall refer
to sections and articles of this Agreement.
5.3 Severability. If any provision of this Agreement, or the application
thereof to any person or circumstance, shall, for any reason or to any
extent, be invalid or unenforceable, such invalidity or
unenforceability shall not in any manner affect or render invalid or
unenforceable the remainder of this Agreement, and the application of
that provision to other persons or circumstances shall not be affected,
but rather shall be enforced to the extent permitted by law.
5.4 Successors and Assigns. All the provisions of this Agreement shall
inure to the benefit of and be binding upon the successors and assigns
of the parties hereto; provided, however, that nothing contained in
this section 6.6 shall be constructed as granting to any party the
right to assign or transfer its rights under this Agreement except as
expressly permitted in section 6.7.
5.5 Assignment. This Agreement shall not be assignable by one party without
the consent of the other party, which consent shall not be unreasonably
withheld; provided that Xethos may assign this Agreement to any of its
affiliates without the consent of APSL. Notwithstanding anything herein
to the contrary, APSL may elect to perform any of its obligations or
undertakings hereunder through one or more of its Affiliates; of its
obligations hereunder regardless of the entity performing on its
behalf.
5.6 Entire Agreement. This Agreement contains the complete statement of all
the agreements between the parties hereto with the respect to the
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subject matter hereof, and all prior agreements between the parties
respecting the subject matter hereof, whether written or oral are
merged herein and shall be of no further force or effect. This
Agreement cannot be changed, modified, discharged or terminated, except
by an instrument in writing signed by the parties.
5.7 Governing Law. This Agreement, and all amendments hereof and waivers
waivers and consents hereunder shall be governed by, and construed and
enforced in accordance with the laws of England.
5.8 No Waiver. No waiver or purported waiver, whether express or implied,
by any party of any breach by the other party of its obligations or
covenants hereunder shall be effective unless made in writing, and no
failure to pursue or elect any remedy with respect to any default
under, or breach of, any provision of this Agreement shall be deemed to
be a waiver of any subsequent, similar or different default or breach.
5.9 Remedies. Each right, power and remedy provided for herein or now or
hereafter existing at law, in equity, by stature or otherwise, shall be
cumulative.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Services Agreement as of the day and year first written above.
For: Argonet Payment Systems Ltd Xethos Group Inc
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