Custodial agreement

Custodial Agreement This Custodial agreement is made on January 1 , 1899 (the ”Effective Date”) between: (the ”Custodian”) and (the ”Applicant”); and (the ”Beneficiary”), together the parties. The parties hereby agree as follows: 1. 1.1 Definitions In this Agreement, the following terms shall have the following meanings, unless the context otherwise requires. Additional terms may be defined in the context of particular provisions of this Agreement: “Agreement” “Beneficiary Site” means custodial agreement and its Exhibits. means the Internet electronic commerce site of the Applicant presently located at the address http://www._____.com or any other address for the Applicant Site. means the electronic site “http://www._____.com” or other site on the Internet as notified by the Company. means the end user. means Exhibit A – D to this Agreement. means copyrights, database rights, design rights, registered designs, trade marks, service marks, trade secrets, know-how, business or trade names, and all other intellectual property rights and neighbouring rights, and rights of a similar or corresponding character (whether or not the same are registered or capable of registration), including in respect of the Banner all data, information, techniques, screen layout, and other material forming the content of the Banner, and all applications and rights to apply for or for the protection of any of the foregoing. “Applicant Site” “Customer” “Exhibit” “Intellectual Property Rights” [Caja Nacional] 1 Custodial Agreement “Applicants’s Privacy Policy” means the Applicant’s privacy policy, as amended from time to time, posted on the Applicant Site for the processing personal identifiable data. means 10-18 Panama time. means the services generally described in Clause 3 and Exhibit A. Person agreeing to evaluate claims and rules of the Contract by signing this agreement, the person may or may not be related to, or in employ of any of the parties Person setting the prevailing risk levels as defined by the contract, the person may or may not be related to, or in employ of any of the parties The underlying agreement between the Applicant and beneficiary where the Applicant is the buyer and the beneficiary is the seller /vendor that this custodial agreement is serve as a settlement vehicle “Service Hours” “Services” “Auditor” “Actuary” “Contract” 1.2 Words importing the singular shall include the plural and vice versa. Words denoting the masculine gender include the feminine gender and both shall include the neuter gender. Subject matter of the Agreement The purpose of this Agreement is to describe the general nature of the custodial services and to establish the terms and conditions under which the custodian will provide or make the Services available to the respective parties. 2. 3. 3.1 3.2 The Services The Services comprises the various services described in Exhibit A. The Custodian agrees to make every reasonable effort to provide the Services during the Service Hours (except for hours when maintenance are undertaken by the Custodian to the systems used for the Services). Notwithstanding the foregoing, the parties agrees that the Services are provided on an “as is” and “when available” basis. In performing the Services, the Custodian undertakes to use the same degree of care and diligence used in processing information for its own use. The Applicant shall provide to the Custodian any and all information required in order for the Custodian to provide the Services. The Custodian shall furthermore provide reasonable assistance in order for the Custodian to provide the Services. If applicable, 3.3 3.4 [Caja Nacional] 2 Custodial Agreement information transferred to the Custodian by the Applicant for the provision of the Services shall be in a format acceptable to the Custodian. 4. 4.1 4.2 Fees and payment terms The fees and payment terms for the Services is as described in Exhibit B. All fees are expressed and payable in USD and are exclusive of any applicable customs tariffs, VAT or other sales tax. Information to Customers xx xx. Information transferred or otherwise processed The Applicant is responsible for that information transferred to or otherwise processed by the Custodian; i) i) does not infringe the Intellectual Property Rights of any third party, and ii) ii) does not breach the Company’s Privacy Policy. The Custodian shall be entitled to review any and all information transferred to or otherwise processed by the Applicant under the Services. Suspension of the Services Without prejudice to any other right the Custodian may have, the Custodian shall be entitled to suspend the Services, or portions thereof, if; i) the Applicant is in breach of any its obligations under this Agreement, ii) an account proves abnormal charges back ratios, iii) information transferred to or otherwise processed by the Custodian under the Services is in breach of any applicable law or the Company’s Privacy Policy, 8. 8.1 Warranty Each of the parties hereby represents that it has all rights and power to enter into this Agreement. 5. 5.1 5.2 6. 6.1 6.2 7. 9. 9.1 Limitation of liability The Custodian shall not be responsible for any failure in providing the Services or any delays in processing which arise from or are attributable to acts, events, omissions or accidents beyond the Custodian’s control, including but not limited to flood, storm, fire, war or terrorist activity, strike, riot, governmental action, computer breakdown or failure, interruption of the telecommunications, electricity network or the Internet. [Caja Nacional] 3 Custodial Agreement 9.2 In no event shall the Custodian’s liability extend to indirect, punitive or consequential damages of any nature whatsoever, including, but without limitation to, lost profits, loss of data, business, revenue, goodwill or anticipated savings, and shall in no case exceed the sum of service fees paid by the Applicant under this Agreement during the 6 months prior to the event giving rise to the claim for damages. Indemnification The Applicant shall indemnify and hold harmless the Custodian from any claims, actions or proceedings by third parties, regardless of whether such claims, actions or proceedings are being rightfully or wrongfully asserted against the Company. 10. 11. 11.1 Confidentiality The expression “Confidential Information” means all information disclosed directly or indirectly by the Custodian to the Applicant, whether orally or in writing, save for information in respect of which it can be established that: (i) it was known to the public or was in the public domain prior to the date upon which it was disclosed by the Custodian; (ii) it entered the public domain after having been disclosed to the Applicant for reasons outside of its control; or (iii) was in the possession of the Applicant without being subject to any obligation of confidentiality, at the date upon which it was disclosed to the Applicant by the Custodian. The Applicant will not at any time either disclose, sell, transfer, assign or make available, in any form and to any person whatsoever, any Confidential Information. The Applicant’s use of Confidential Information is required to be in strict compliance with its contractual obligations hereunder or where the disclosure thereof is required by applicable law or by order of any judicial or public authority. The Applicant agrees to take all reasonable measures so as to preserve the confidentiality of Confidential Information and to prevent any unauthorized disclosure or use thereof. All Confidential Information shall remain the exclusive property of the Custodian. Any documents, electronic data or other materials containing any Confidential Information or referring thereto will be delivered up to the Custodian without delay upon demand by the Custodian. Any breach by the Applicant of the confidentiality undertakings hereunder shall entitle the Custodian to immediately terminate this Agreement without right, recourse or compensation being available to the Applicant in respect of such termination. 12.2 12.3 12.4 15. 15.1 15.2 Notices All notices served under this Agreement shall be in writing. Notices shall be delivered personally or sent by registered letter, by fax or by e-mail to the postal address or e-mail address or fax number (as the case may be) of the recipient set out in Exhibit D or to any alternative address or fax number that has been notified by the recipient for that purpose. [Caja Nacional] 4 Custodial Agreement 15.3 Any notice that is served under this Agreement shall be deemed to be received: (i) upon receipt, in the case of deliveries by hand during business hours or by registered letter; (ii) upon receipt of a transmission slip confirming receipt, when sent by fax; and (iii) upon sending, when sent by e-mail provided that no return e-mail is received to indicate that notice was not successfully received. Entire Agreement This Agreement, which incorporates Appendix A – D, contains the entire agreement and understanding of the parties relating to the subject matter of this Agreement and excludes for the avoidance of doubt all prior offers, undertakings, agreements or arrangements (both oral and written) between the parties in connection with the subject matter of this Agreement. 16. 17. 17.1 Term and termination This Agreement shall enter into effect on the Effective Date and shall continue in effect until terminated by either party giving the other party three (3) months notice hereof. The Custodian must be able to cease delivering on the agreement with imidiate effect if deemded necessary 17.2 The Custodian may terminate this Agreement with immediate effect if; i) the Applicant is in breach of any its obligations under this Agreement, ii) information transferred to or otherwise processed by the Custodian under the Services is in breach of any applicable law or the Custodian’s Privacy Policy, iii) an amount payable by the Applicant under this Agreement is not paid when due and continues to be unpaid 5 days after notification hereof, 18. Amendments This Agreement may only be amended by a written instrument executed by al parties. The Custodian may amend this agreement in wrting and if applicant does not oppose such a change within 30 days the amendment goes into effect from the date of isssue 19. 19.1 Governing law and disputes This agreement is governed by the laws of Panama, without regard to its conflict of laws provision. 20. 20.1 Miscellaneous provisions This Agreement or right or obligations hereunder may not be transferred by a party to a third party without the express written consent of the other party. Notwithstanding the preceding, the Custodian may transfer this Agreement or parts thereof or rights or obligations hereunder to another Custodian within the group of companies to which the Custodian belongs and to third parties in cases of mergers, acquisitions or business divestures of the Custodian or parts thereof. [Caja Nacional] 5 Custodial Agreement 20.2 No failure or delay of either party in exercising its rights hereunder shall be deemed to be a waiver of such rights unless expressly made in writing by the party waiving his rights. If any provision of this Agreement or part thereof shall to any extent be or become invalid or unenforceable, the parties shall agree upon any necessary and reasonable adjustment of this Agreement in order to secure the vital interests of the parties and the main objectives prevailing at the time of execution of this Agreement. Failing an agreement between the parties on adjustments of this Agreement, such adjustments shall be made by arbitrators in accordance with the provisions of the arbitration clause in this Agreement. Headings used in the conditions or throughout this Agreement are used for convenience only and shall not affect the interpretation of this Agreement. The parties are independent contractors. Neither party shall be, nor represent itself to be, the employee, agent representative, partner or joint venturer of the other. Neither party shall have the right or authority to assume or create an obligation on behalf of or in the name of the other or to otherwise act on behalf of the other. 20.3 20.4 20.5 The Parties have executed this Agreement in two originals of which each party has taken one. [Custodian] [Applicant] _________________________ Signature _________________________ Printed Name _________________________ Signature _________________________ Printed Name [Auditor] [Actuary] _________________________ Signature _________________________ Printed Name _________________________ Signature _________________________ Printed Name [Caja Nacional] 6 Custodial Agreement Exhibit A Services The Custodian hereby irrevocably guarantees to pay the Beneficiary any funds due him by the Applicant according to the Contract as assessed by the Auditor and classified by the Actuary limited to the aggregate amount deposited by the Applicant for the possible benefit of the Beneficiary according to the Contract less any fees due the Custodian for these services and to the rules set out in this agreement.  Any payment due the beneficiary may be made by making the funds available to the beneficiary on his account with the custodian [INSERT COMPANY NAME] 1 Exhibit A to Data Processing Agreement Exhibit B Fees and payment terms        50 usd for any wire transfer made 2 usd for any internal transfer made 100 usd per hour for standard work done. 250 usd per hour for any managerial level work done 100 usd per any phone call 100 usd per month per party and accounb to this agreement 100 usd per correspondence issued [INSERT COMPANY NAME] 1 Exhibit B to Data Processing Agreement Exhibit C Contract synopsis             The Applicant are continually procuring goods from the Beneficiary The Custodian holds funds due to the Beneficiary for delivered goods resold and paid to end users The Beneficiary may also collect funds for agents (affiliates) recommending end users to the Applicant The Affiliate guarantees payment from any recommended customers The beneficiary guarantees payments from any affiliate Most end users can return goods and demand refund up until six month form purchase Most refunds incur financial charges for the applicant An actuary is nominated by the Applicant to asses the current risk level and prognosticate future return levels The applicant is due a risk premium to cover increased risk levels The Applicant can be forced by third parties to stop al payments to the Beneficiary for up to eight months The Beneficiary indemnifies the applicant for any costs incurred by the Applicant due to end users recommended by any affiliate Normal way of transaction 1. End users is sent by the affiliate (related to the beneficiary) to the applicant to procure goods 2. End user purchases goods from applicant 3. Applicant reports goods sold to Beneficiary 4. Applicant deposits net revenue less payment channel withholdings and margin from the sale of goods with the Custodian 5. Custodian deducts (by internal transfers) risk premium deposits , risk premium charges , errors and omissions deposits , errors and omissions charges , in accordance with the contract as assessed by the auditor 6. Custodian pays the balance due to the beneficiary according to contract as assessed by the auditor 7. Custodian pays out any charges collected to the applicant 8. Any funds held will be managed by the custodian 9. Custodian may effect any payments outside of the contract if agrred by both the applicant and the beneficiary [INSERT COMPANY NAME] 1 Exhibit C to Data Processing Agreement Exhibit D Contact details The Custodian [INSERT CUSTODIAN NAME AND ATTENTION] [INSERT ADDRESS] Phone: Mobile: E-mail: The Applicant [INSERT CUSTODIAN NAME AND ATTENTION] [INSERT ADDRESS] Phone: Mobile: E-mail: [INSERT COMPANY NAME] 1 Exhibit D to Data Processing Agreement Power of Attorney if needed To:________________________ I ___________________ representing ______________ hereby authorize Caja Nacional or anyone they may chose to nominate to collect any funds, services, goods or other compensation owed to us on our behalf, as well as initiate any transaction covered in any agreement we have with you . Further we authorize Caja Nacional Ltd to respond and issue receipts on our behalf to service any agreement we may hold with you Signed and dated(Seller Witness Signature) _ _______________________________________________________________________ Print Name and SignPrint Name of Witness Date: witness _ _______________________________________________________________________ Print Name and SignPrint Name of Witness Date: _____/_____/_____ _____/_____/_____ [INSERT COMPANY NAME] 1 Exhibit D to Data Processing Agreement