Legal Capital One Agreement

LEGAL CAPITAL ONE AGREEMENT

This Legal Capital One Agreement ("Agreement") is entered into as of , by and between Capital One Entity Name: with principal address (hereinafter "Capital One"), and Client Name: with address (hereinafter "Client").

RECITALS

WHEREAS, Capital One is engaged in the business of providing financial services, credit facilities, account management and related services to its clients; and

WHEREAS, Client desires to obtain and Capital One desires to provide certain products or services described in this Agreement subject to the terms and conditions set forth herein; and

WHEREAS, the parties wish to set forth their respective rights and obligations with respect to such products and services.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

For the purposes of this Agreement, the following terms shall have the meanings set forth below: "Account" means any account opened or maintained by Client with Capital One pursuant to this Agreement; "Services" means the financial products, credit facilities, account access, processing and related services described in Section 2; "Confidential Information" means nonpublic information disclosed by one party to the other that is designated as confidential or that reasonably should be understood to be confidential.

2. SCOPE OF SERVICES

Capital One shall provide the Services to Client as set forth in this Agreement and any Service Schedule executed by the parties. Services may include but are not limited to account opening, credit extension, transaction processing, custodial or agent functions, reporting and advisory services. Specific duties, deliverables and performance standards shall be documented in the Service Description below or in an attached schedule.

3. FEES AND PAYMENT

Client shall pay fees, charges and other amounts set forth in the Fee Schedule. Unless otherwise agreed in writing, all fees are due within thirty (30) days of invoice. Capital One may set off any amounts due from Client against any amounts owed to Client. Late payments shall accrue interest at the rate of the lesser of 1.5% per month or the maximum rate permitted by applicable law.

4. REPRESENTATIONS AND WARRANTIES

Each party represents and warrants to the other that: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (b) it has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and (c) the execution, delivery and performance of this Agreement will not violate any law or contractual obligation applicable to it.

5. COVENANTS

Client covenants that it will provide accurate information to Capital One, will comply with reasonable security procedures, and will notify Capital One promptly of any unauthorized access, theft or other breach. Capital One covenants to perform Services in a commercially reasonable manner and in accordance with applicable laws and banking practices.

6. CONFIDENTIALITY; DATA SECURITY

Each party shall protect Confidential Information of the other with at least the same degree of care as it protects its own confidential information, but in no event less than reasonable care. Confidential Information shall not be disclosed except to employees, agents or subcontractors on a need-to-know basis who are bound by confidentiality obligations. Each party shall implement and maintain appropriate administrative, physical and technical safeguards to protect personal data in accordance with applicable law.

7. INDEMNIFICATION

Each party (the "Indemnifying Party") shall indemnify, defend and hold harmless the other party (the "Indemnified Party") from and against any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys' fees) arising out of third party claims to the extent resulting from the Indemnifying Party's breach of this Agreement, negligence, willful misconduct, or violation of law.

8. LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM WILLFUL MISCONDUCT, GROSS NEGLIGENCE OR A PARTY'S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY CLIENT TO CAPITAL ONE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

9. TERM AND TERMINATION

This Agreement shall commence on the effective date specified above and shall continue for an initial term of months, unless earlier terminated in accordance with this Section. Either party may terminate this Agreement for material breach if the breach is not cured within thirty (30) days after written notice. Upon termination, Client remains liable for fees and obligations incurred prior to termination and for any post-termination transition services agreed in writing.

10. NOTICES

All notices required or permitted under this Agreement shall be in writing and delivered by certified mail, overnight courier, or nationally recognized electronic delivery with evidence of receipt, to the addresses set forth below or to such other address as either party may designate by notice.

11. ASSIGNMENT

Neither party may assign or transfer this Agreement or any rights or obligations hereunder without the prior written consent of the other party, except that Capital One may assign this Agreement to an affiliate or in connection with a merger, sale of assets or corporate reorganization provided that the assignee assumes Capital One's obligations hereunder.

12. AMENDMENTS; WAIVER

No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both parties. The waiver by either party of a breach of this Agreement shall not operate or be construed as a waiver of any subsequent breach.

13. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the state of without regard to its conflicts of laws principles. Each party consents to the exclusive jurisdiction of the state and federal courts located within that state for any action arising out of or relating to this Agreement.

14. ENTIRE AGREEMENT

This Agreement, together with any service schedules, exhibits and addenda expressly incorporated herein, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, proposals, representations and understandings.

15. SEVERABILITY

If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect and shall be construed so as to best effectuate the parties' intent.

16. COUNTERPARTS

This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Facsimile or electronically transmitted signatures shall have the same force and effect as original signatures.

ADDITIONAL ACKNOWLEDGMENTS

The parties acknowledge that they have read and understand this Agreement and that they have had the opportunity to seek independent legal advice prior to executing this Agreement. The parties further acknowledge that the person signing on behalf of an entity has authority to bind that entity to the terms of this Agreement.

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