This Marketing Agreement involves
Title: MARKETING AGREEMENT
Governing Law: Illinois Date: 2/8/2007
Industry: Software and Programming
Confidential Treatment Requested
Redacted sections marked by
brackets [* *] have been omitted pursuant to a
request for confidential treatment and have been filed separately.
Stephen C. Herndon
Senior Vice President
Global Government Group
600 Peachtree Street NE
Atlanta, GA 30308
This letter details the agreement between EPIQ Systems and Bank of America to extend our marketing arrangement for Chapter 7 bankruptcy products and services, and unless otherwise indicated, the terms of this letter will become effective as of the date hereof.
1. Modification of Previous Agreements . This letter modifies and amends the Agreement for Computerized Trustee Case Management System dated November 22, 1993 (the “1993 Agreement”) and all other agreements between the parties in writing, with respect to the subject matter hereof, including but not limited to this letter and those letters dated October 2, 2003, December 5, 2003, and March 29, 2004, (collectively, with the 1993 Agreement, the “Letter Agreement”). If a provision of this letter conflicts or is inconsistent with any provision of any other component of the Letter Agreement, then the terms of this letter will be controlling. Except as modified by this letter, the terms of the 1993 Agreement and the Letter Agreements will continue in full force and effect and will constitute our entire agreement and supersede any other prior agreements (oral or written). Terms with initial capital letters shall have the meanings as defined in this Agreement. The terms “party” and “parties” shall refer to EPIQ Systems and Bank of America.
A. Bank of America reaffirms it will continue to accept new joint bankruptcy trustee clients into the EPIQ Systems & Bank of America marketing arrangement as described in Section 1 and agrees to make its products and services available to those bankruptcy trustee clients that execute the appropriate service agreements with EPIQ Systems and Bank of America, and such client shall be deemed to be a joint client (the “Joint Clients”); provided, however, that Bank of America, based on its reasonable business judgment, shall have the right to reject a business relationship with any such bankruptcy trustee client.
B. Each party will determine its own level of sales and marketing resources and its efforts with respect to marketing and servicing Joint Clients; provided, however, that each party will coordinate and cooperate with the other party in good faith with respect to Joint Client calls.
C. In client-facing contexts, both parties agree to refer to one another as a marketing ally and will not refer to one another as a vendor, customer, supplier or sub-contractor.
3. Non-Exclusive Relationship.
A. As of the effective date of this letter, the marketing arrangement between EPIQ Systems and Bank of America will continue on a non-exclusive basis for all products and services offered by either party. The marketing arrangement is not a vendor/supplier agreement, and neither party is a customer/vendor of the other. Both parties may independently or jointly market their services to their respective bankruptcy trustee clients or other potential clients for the purpose of engaging in the Chapter 7 Trustee business .
B. EPIQ Systems and Bank of America will be entitled to engage other banks or software providers, respectively, to provide the same services to its clients as provided by the other party under the Letter Agreement.
C. [*Redacted pursuant to a request for confidential treatment and filed separately.*]
4. Products and Services . EPIQ Systems and Bank of America agree to provide Joint Clients with products and services in accordance with the Letter Agreement and in compliance with the United States Trustee Chapter 7 Handbook and the United States Bankruptcy Code. Each party will work in good faith to make its products and services competitive in the marketplace and to maintain the quality of its products and services on an on-going basis.
5. Fees. Bank of America agrees to compensate EPIQ Systems for the deposit portfolio maintained at Bank of America and the Joint Client relationships according to the Fee Schedules attached hereto as Exhibit A and Exhibit B, as may be amended from time to time as permitted herein. Modifications to the Fee Schedules may be requested by either party and require the prior written consent of both parties. All fees will be paid only by Bank of America to EPIQ Systems directly. No fee payable hereunder will be passed on or through to a Joint Client or any other third party.
6. Joint Clients. Until this marketing arrangement between EPIQ Systems and Bank of America is terminated after following the procedure outlined in Section 9, the parties agree that each Joint Client has the right to remain a client of each of EPIQ Systems and Bank of America and to utilize each party’s respective products and services in accordance with the Letter Agreement. Notwithstanding Section 3 above, Bank of America will not, and its Affiliates will not, directly or indirectly support with its products or services a Joint Client through any other arrangement with another third-party technology provider for a period of time which is eighteen (18) months following the completion of EPIQ Systems’ most recent financial investment in hardware or on-site training for the benefit of such Joint Client.
7. Industry Conventions. Both parties shall remain in full compliance with U.S. Trustee and bankruptcy court regulations pertaining to customer relationships, products and services. If regulatory changes alter the industry environment in a fashion that materially affects one or both parties, then the parties shall work in good faith to negotiate an appropriate modification, if any is warranted, to this marketing relationship.
8. Shared Costs. If the parties mutually agree to cooperatively convene Joint Client entertainment, holiday dinners or other industry events, then the parties will share these costs equally and will promptly reimburse one another for actual out of pocket expenses (not to include charges for travel, lodging or meals incurred by their own personnel). Neither party will be required to convene or pay for any such event, unless it so agrees in advance.
A. Termination. The Letter Agreement will remain in effect unless terminated in accordance with the provisions of this Letter Agreement. Either party may initiate termination by providing written notice to the other party of such party’s intent to terminate the Letter Agreement, as amended (“Preliminary Termination Notice”); provided, however that neither party shall initiate termination prior to October 1, 2006. This termination provision only relates to the Chapter 7 bankruptcy product of the parties, and will have no effect on any other products, business or development that Bank of America and EPIQ Systems may be promoting or conducting together. The duration of the termination process will be three (3) years following receipt of the Preliminary Termination Notice (the “Disengagement Period”) and will be divided into the following three phases.
[*Redacted pursuant to a request for confidential treatment and filed separately.*]
B. Dissemination of Information. During the Disengagement Period, both parties will cooperate in the dissemination of information regarding their relationship and will cooperate with reasonable requests of the other party regarding public statements, communications with Joint Clients and regulatory bodies, meetings with interested parties, routine audit confirmations and due diligence inquiries and other appropriate matters.
C. Products, Services and Quality. During the Disengagement Period, (i) both parties shall continue to offer all their respective products and services, in accordance with this Letter Agreement, and (ii) Joint Clients may continue using the combined products and services of both parties. During the Intent to Terminate Period, the Transition Planning Period and the Wind-up Period, both parties will continue to accept and support new Joint Clients in accordance with the Letter Agreement and Section 9Aiii, above.
D. Applicability of all Terms and Conditions. During the entirety of the Disengagement Period, all terms of the Letter Agreement, as amended, will remain in full force and effect
E. Fees. During the Disengagement Period and any extension thereof, Bank of America will continue to pay direc