EX-10.3 4 d936763dex103.htm EX-10.3
1
SERVICES AGREEMENT
This Agreement (the “
Agreement
”) is is entered
into by and between
Popular, Inc. (“
Popular
”), a corporation duly
organized
existing under
the laws
of
Commonwealth of
Puerto Rico
and Ignacio
Alvarez (“
Consultant
”) (each
a
“
Party
” and together the “Parties”), on February 25, 2025.
WHEREAS, Consultant is currently employed by Popular as Chief Executive Officer;
WHEREAS, Consultant has decided to retire from Popular effective June 30, 2025; and
WHEREAS, Popular
desires to
retain Consultant
following his
retirement to
provide certain
consulting services
to
Popular, and Consultant desires to provide such consulting
services to Popular, all subject to the terms and
conditions
set forth herein; and
NOW THEREFORE,
in consideration
of the
promises and
the mutual
covenants and
agreements contained
herein,
and
for
other
good
and
valuable
consideration,
the
receipt,
sufficiency
and
adequacy
of
which
are
hereby
acknowledged, the parties hereby agree as follows:
1.
Services
1.1
Service Engagement. Consultant represents
and agrees that it shall
provide and render to Popular
such consulting
services, as may
be reasonably requested
by Popular, (i) to
facilitate the transition
of the Chief
Financial Officer’s
responsibilities to
Consultant’s
successor and
(ii) to
support other
general business
initiatives (collectively,
the
“
Services
”).
1.2
Independent Parties. Consultant
is an independent
contractor. Nothing
in this Agreement
creates an employer-
employee relationship with
Popular, nor a partnership,
affiliation, joint venture, agency
relationship or other
form
of business association between the Parties hereto.
2.
FEES, INVOICES AND PAYMENT
2.1
Fees and Reimbursable Expenses. For the Services provided under this
Agreement, Popular shall pay Consultant
a fee
equal to
$47,000 per
month, for
an aggregate
total fee
of $282,000
during the
Term
(as defined
below)
(“
Fees
”).
The
Fees
include
all
fees,
costs
and
administrative
and
overhead
expenses.
Popular
will
reimburse
Consultant only for those expenses previously agreed to by Popular and,
unless otherwise stated, meal and travel
expenses will be reimbursed in accordance with Popular’s guidelines, which will be provided upon request.
2.2
Payment. Popular will pay the Fees in United States Dollars, monthly in arrears,
no later than the fifteenth (15th)
day of the calendar month
following the month in which such
fee was earned. Popular will deposit
the payment
electronically to the bank account designated by Consultant or as otherwise mutually agreed to by the Parties.
2.3
Taxes.
Consultant shall pay
all taxes related to
the Services provided under
this Agreement. If Popular
is required
by Federal
or US
state Law
to withhold
taxes on
any amount
payable to
Consultant, Popular
will deduct
such
taxes
and pay
them
to the
appropriate taxing
authority,
unless Consultant
submits evidence
of
a government-
issued exemption or waiver. However, Popular’s omission from withholding any applicable taxes, in whole or in
part, will not discharge
Consultant’s responsibility
to pay any such
taxes when due.
Consultant shall indemnify
Popular from any and
all liability that may
arise for nonpayment of
any applicable taxes. Popular
shall pay any
state sales,
use or
value added
tax applicable
to the
Services or
products. The
withholding Party
shall provide
proof of payment of the taxes withheld.
3.
TERM AND TERMINATION
2
3.1
Term of the Agreement. The Agreement
will commence on July
1, 2025 (the “
Effective Date
”) and will continue
in effect until December 31, 2025 (the “
Term
”).
3.2
Termination.
Either
Party
may
terminate
the
Agreement
for
cause
upon
written
notice
to
the
other
Party
as
follows:
(1) if the cause for termination relates to a violation of Laws (defined below), breach
of confidentiality,
privacy
or
other
compliance
matter,
the
termination
may
be
effective
immediately
or
(2)
for
Consultant’s
noncompliance with its
obligations under the
Agreement, the effective termination
date will be
ten (10) days
after
delivery of the notice of the breach to the breaching Party if it remains uncured at the expiration thereof.
3.3
Effect
of
Termination.
Upon
expiration
or
termination
of
the
Agreement
for
any
reason,
Consultant
shall
promptly: (a) deliver to Popular, upon request, all
documents, work product, and other materials, whether or not
complete, prepared by or on behalf
of Consultant during the course
of performing the Services for which
Popular
has made the corresponding payment; (b) return to Popular all Popular-owned
property, equipment, or materials
in
its
possession
or
control;
(c)
remove
any
Consultant-owned
property,
equipment,
or
materials
located
at
Popular’s
locations;
and
(d)
comply
with
the
provisions
related
to
the
destruction
of
Popular’s
Confidential
Information as provided below.
3.4
Survival of
Terms.
Any provision of
the Agreement that
expressly or
by implication
is intended
to continue in
force shall survive termination or expiration of the Agreement.
4.
CONFIDENTIALITY OF INFORMATION
4.1
General. The Parties acknowledge that, in
furtherance of the Agreement, the Consultant
(the “
Receiving Party
”)
may
receive
from
Popular
(the
“
Disclosing
Party
”)
Confidential
Information.
Unless
otherwise
agreed,
the
Disclosing Party will remain the owner of the Confidential Information and any derivative
thereof and retains its
entire
right,
title,
and
interest,
including
all
intellectual
property
rights,
therein.
Any
disclosure
of
such
Confidential
Information
hereunder
shall
not
be
construed
as
an
assignment,
grant,
option,
license,
or
other
transfer
of
any
such
right,
title,
or
interest
whatsoever
to
the
Receiving
Party.
Other
than
the
limited
rights
hereunder, the Receiving Party has no other rights in or to any Disclosing Party’s Confidential Information.
4.2
Definition
of
Confidential
Information.
The
term
“
Confidential
Information
”
means
any
and
all
of
the
Disclosing Party’s confidential or proprietary non-public information or data, whether in electronic or hard copy
format, that
is collected,
generated, developed,
or used
in its
business or
operations. Confidential
Information
includes: (1) nonpublic information
or data related to actual
or potential employees, clients
or suppliers including
agreement terms
and conditions
and lists;
(2) Intellectual
Property (as
defined below);
(3) products
or services
currently provided or to be developed, including any market research, forecasts or surveys, plans, specifications,
documentation, quality guidelines, and analyses
of strengths or weaknesses; (4)
marketing and sales information,
such
as
techniques
and
data,
product
development
and
delivery
schedules
and
methods
and
logistical
requirements, strategic
planning,
marketing and
advertising plans
and
budget; (5)
technical and
technological
information,
including
computer
software
and
related
documentation,
license
terms,
designs,
formulas
and
algorithms, hardware
and systems
design, specifications,
dataflow, networks, physical and
systems environments,
troubleshooting guidelines, test and audit results, data and databases, interfaces, performance characteristics and
reports;
(6)
financial
information,
including,
financial
statements,
revenue,
income,
overhead
costs,
profit
margins,
banking
and
financing
data,
budgeting
data
and
reports,
tax
information
and
pricing
policies;
(7)
organizational information
including, merger,
acquisition and
expansion plans,
facilities and
equipment design
and location;
and (8)
Popular’s overall
strategies, specific
programs and
strategies utilized
by Popular;
and the
success or lack of
success of those
programs and strategies.
To the extent applicable to the
Services, Confidential
Information includes Popular’s
clients’ statutorily protected non-public
personal information or data
(“Personal
Data”) as defined in applicable Law and this Agreement. Confidential Information does
not include information
that the Receiving
Party can reasonably
demonstrate: (1) was
already known to
or was rightfully
in the possession
of the Receiving Party at the time of disclosure; (2) becomes a matter
of public knowledge other than as a result
of
a
breach
of
any
obligation
of
confidentiality
hereunder
or
under
any
confidentiality
agreement
that
the
3
Receiving Party may
have with a
third
-party; (3) was
independently developed by
the Receiving Party
without
reference to any
Confidential Information of
the Disclosing Party;
(4) was lawfully
received from a
third-party
without
a
duty
of
confidentiality;
or
(5)
was
approved
for
release
by
the
Disclosing
Party
in
writing.
Notwithstanding
this
exception,
Popular’s
Intellectual
Property
and
Personal
Data
will
always
be
considered
Confidential Information.
4.3
Confidential Information Use and Disclosure.
(A)
Any disclosure by the Receiving Party of any of the Disclosing Party’s
Confidential Information in order to
comply with applicable
Law, or
with a valid
order issued by
a court or
governmental agency of
competent
jurisdiction
(a
“
Legal
Order
”)
shall
be
subject
to
the
terms
of
this
Section.
Before
making
any
such
disclosure, the
Receiving Party
shall provide
the Disclosing
Party with:
(a) prompt
written notice
of such
requirement so that
the Disclosing Party
may seek, at
its sole cost
and expense, a
protective order or
other
remedy;
and (b)
reasonable assistance,
at
the
Disclosing Party’s
sole cost
and
expense, in
opposing such
disclosure or seeking a protective order or other limitations on
disclosure. If, after providing such notice and
assistance, the Receiving Party (or other persons to
whom such Legal Order is directed)
remains subject to
a Legal Order,
the Receiving Party shall disclose
no more than that portion
of the Confidential Information
which,
on
the
advice
of
the
Receiving
Party’s
legal
counsel,
such
Legal
Order
specifically
requires
it
to
disclose and,
on the
Disclosing Party’s request,
shall use
commercially reasonable
efforts to
obtain assurances
from
the
applicable
court
or
agency
that
such
Confidential
Information
will
be
afforded
confidential
treatment. Nothing herein shall require either Party to fail to honor a
subpoena, court or administrative order
or a similar requirement or request
on a timely basis. If Confidential
Information includes materials subject
to the attorney-client privilege, work product doctrine
or any other applicable privilege concerning pending
or reasonably foreseeable
legal proceedings or
governmental investigations, the
sharing of such
material is
not intended to, and shall not, waive or diminish in any way the confidential nature of the information or its
continued protection under the attorney-client privilege,
work product doctrine or other applicable privilege.
(B)
The
Consultant
shall
not,
without
Popular’s
prior
written
consent:
(i)
use,
reproduce,
sell,
market,
disseminate, modify or disclose, reverse engineer, translate, discover the
source code or trade secrets, render
anonymous, aggregate,
segregate or
mine any
Confidential Information
for any
purpose other
than to
perform
the
obligations
for
which
the
Confidential
Information
is
being
disclosed;
(ii)
disclose
the
Confidential
Information; (iii) use, access, disclose,
process, transmit, share or store
Confidential Information outside of
the jurisdiction of the United States; or (vi) remove any proprietary rights or confidentiality legend from the
Confidential Information.
4.4
Confidential
Supervisory
Information.
Consultant
agrees
that
it
will
(i)
not
disclose
Confidential Supervisory
Information
(“CSI”)
to
any
person
or
entity
without
the
prior
written
approval
of
Popular
and
the
pertinent
banking regulatory agency
and (ii) not
use the CSI
for any purpose
other than as
necessary to provide
the Services
under this Agreement. “Confidential Supervisory Information” or “CSI” means nonpublic information that is by
law
or
regulation
exempt
from
disclosure
and
that
is
or
was
created
or
obtained
in
furtherance
of
a
banking
regulatory
agency’s
supervisory,
investigatory
or
enforcement
activities
relating
to
a
supervised
financial
institution, together with any information derived
from or related to such
information. Confidential Supervisory
Information is
confidential and
privileged and remains
at all
times the
property of
the pertinent
banking regulatory
agency.
4.5
Protection of
Confidential Information.
The Consultant
agrees to
implement and
maintain updated
during the
Term, controls necessary
and appropriate
for the
Consultant in
order to
protect Popular’s
Confidential Information
against anticipated threats or hazards
or unauthorized access to or
use thereof. If the
Consultant discovers it has
suffered an
unauthorized access,
disclosure, loss
or use
of Popular’s
Confidential Information
it will
promptly
notify the incident to Popular and will take all reasonable steps to immediately mitigate, remedy
and prevent any
further disclosure and assist the Popular in any investigation regarding the incident, all at its expense.
4
4.6
Destruction. Upon Popular’s request,
the Consultant shall promptly return
or destroy all copies
of the Popular’s
Confidential Information,
whether in
physical or
digital formats,
and derivatives
and metadata
related thereto
including copies embedded in
computer files, extracts from computer
files and analyses or
other material based
upon the Confidential Information. Should Popular request evidence of
the destruction of any such Confidential
Information, the Consultant shall submit,
within thirty (30) calendar days
of such request (or
such other time as
agreed to
between the
Parties), an
attestation executed
by the
Consultant certifying
that any
such Confidential
Information has been destroyed.
5.
COMPLIANCE AND AUDIT
5.1
Compliance Requirements.
(A)
Legal Requirements in General.
Consultant will provide the Services
and comply with his obligations
under
the Agreement
in a
professional manner
and in
accordance with
industry best
practices and
in compliance
with
applicable
federal,
state,
local,
and
foreign
law,
rule,
regulation,
administrative
determinations,
and
guidance,
as
well
as
the
judgments
and
orders
issued
by
competent
government
authorities
thereunder
(“Laws”), and professional code of
conduct.
(B)
OFAC.
Consultant represents and warrants that: (a) he complies, and shall
at all times during the Term will
continue to comply,
with the regulations of the U.S. Treasury
Department Office of Foreign Assets Control
(“
OFAC
”) and any statute, executive order, or rule relating thereto, as well as any similar laws of a relevant
jurisdiction that may be applicable to the Consultant; (b) he or persons acting on Consultant’s behalf do not,
and
shall
not
during
the
term
of
the
Agreement,
appear
on
OFAC’s
Specially
Designated
Nationals
and
Blocked Persons List (“
SDN List
”), Foreign Sanctions Evaders List, or the
Sectoral Sanctions Identification
List (“
SSI List
”), or on any other similar list maintained by OFAC
or any other governmental authority; (c)
he is not located in
any country or territory
that is the subject
to the broad U.S sanctions
prohibitions; and (d)
Consultant, is not
as of the
Effective Date, the
subject of any
investigation relating to
a sanctions violation
or a potential sanctions
violation and if any
is found in the
future to be in
such a violation, it
will promptly
inform Popular, to the extent not prohibited by Law.
(C)
Anti-Bribery/Anti-Corruption.
1)
Consultant acknowledges and agrees that he complies and during the Term will continue to comply, with all
applicable anti-bribery and anti-corruption
Laws, including, but not limited
to, the Foreign Corrupt Practices
Act (15 USC
§dd-1, et. seq.)
(“ABC Laws”).
To
this effect, Consultant
agrees that, while
performing the
Services or purporting to act on behalf of Popular, Consultant will not: (1) make, offer, promise or authorize
the payment of anything of value (including, but not limited to, unlawful gifts, bribes, meals, entertainment,
kickbacks or benefits), either directly or
through a third -party, to any official or employee of any local,
U.S.
or foreign government authority,
organization or instrumentality thereof, or to any
political party or official
thereof or to
any candidate for political
office (a “Public
Official”) for any
purpose that violates applicable
ABC Laws, in order
to: (i) influence any
act or decision of
such Public Official,
including a decision to
do
or omit
to do
any act
in violation of
his lawful
duties or
proper performance
of functions; (ii)
induce such
Public Official to use its authority or position with any government entity or with any
other person or entity,
to influence any governmental act or decision;
(iii) obtain or retain business for,
direct business towards, or
secure an
improper advantage for,
Popular; or
(iv) perform
any act
or make
any decision
that is
otherwise
prohibited by applicable law;
or (2) solicit or accept
anything of value in connection
with the performance of
any service
or activity
for or
on behalf
of Popular.
Furthermore, unless
specifically requested,
Consultant
agrees not to,
directly or through
an intermediary: (1)
contact any federal,
state, local or
foreign regulatory
body or Public Official regarding any
matter or issue in connection
with the Services for Popular;
(2) engage
in lobbying efforts
on behalf
of Popular, or
(3) make
payments to a
Public Official on
behalf of Popular
solely
5
to expedite or secure the performance of
routine, non
-discretionary government actions to which Popular is
already entitled (“facilitating payments”).
2)
Consultant represents that, to the best
of Consultant’s knowledge, he does not have a close
association based
on a
family,
romantic or
friendship relationship
(“personal relationship”)
with a
Public Official
who may
need to act
or omit
to act
directly or indirectly
as part
of its lawful
duties, in
relation to any
part of the
Services
Consultant renders for Popular.
3)
Consultant agrees to report
in writing to Popular
any known or suspected
violations of applicable ABC
Laws
or the terms
of this Section
that occur in
connection with Consultant’s performance
of the Services,
including
if he identifies that
any unlawful payment has
occurred in violation of
the above or if
he receives a request
or solicitation for any such payment.
5.2
Code of
Ethics. Consultant
represents that
he has
read, and
shall comply
with, the
Code of
Ethics for
Popular
Suppliers,
as
may
be
amended
from
time
to
time,
a
copy
of
which
is
located
at
https://investor.popular.com/eng/corporate-governance/default.aspx or such other site identified by Popular.
5.3
Monitoring and Audit Rights.
(A)
Consultant acknowledges that
Popular, its internal or external
auditors and its regulators
may perform audits,
assessments, examinations,
or reviews
of Consultant’s
Services (“
Audit
”) in
order to
confirm compliance
with the Agreement, as well as with Laws and industry standards. Upon Popular’s written request, at a time,
frequency
and
place
reasonably
agreed
to
between
the
Parties,
Consultant
shall
submit
the
information,
provide periodic
reports (including
those of
internal controls,
systems, financial
condition or
compliance),
respond to
risk questionnaires
or allow
access to
relevant Personnel,
systems, documents
or physical
premises
in a timely
manner so as
to permit Popular
to comply with
the Audit. If
an Audit reveals
areas of material
concern
to
Popular,
the
Parties
will
agree
on
a
plan
to
address
the
deficiency
in
an
adequate
and
timely
manner.
If Consultant does not address such material deficiencies in accordance
with the plan, Popular may
modify the
frequency of
the monitoring
activities at
Consultant’s
expense or
terminate the
Agreement for
cause.
6.
INTELLECTUAL PROPERTY
6.1
Ownership.
Each Party
acknowledges that
the other
Party owns
the intellectual
property associated
with or
related
to the other Party and, in the case of Popular, its affiliates, and their respective businesses, products and services
including copyrights, patents, patent disclosures and
inventions (whether patentable or not), trademarks, service
marks, trade
secrets, know-how,
and other
confidential information,
trade dress,
trade names,
logos, corporate
names and
domain names,
together with
all of
the goodwill
associated therewith,
and derivative
works in
whatever
medium
whether
or
not
registered,
and
all
related
rights
therein
(“Intellectual
Property”).
Each
Party
further
acknowledges that
it receives
no right,
title to
or interest
in or
to any
of the
other Party’s
Intellectual Property
other than as provided under the Agreement.
6.2
Popular Ownership of Work
Product. Unless otherwise explicitly
agreed to in writing
by the Parties, Popular
is
and
will
be
the
sole
and
exclusive
owner
of
all
right,
title
and
interest
throughout
the
world
in
and
to
all
deliverables that are the results
and proceeds of the Services
performed under the Agreement, whether
developed
singly or jointly
with any other
person or entity, for
or on behalf
of Popular (“Work Product”).
The Work Product
includes,
without
limitation,
all
works
of
authorship,
data,
materials
or
information
gathered,
originated,
developed,
processed
or
obtained,
and
all
program
codes
or
documentation
together
with
any
associated
6
copyrights. Consultant
agrees that
all Work Product will
be deemed
“work for
hire” as
defined by
Law for
Popular
and all
copyrights therein automatically
and immediately vest
in Popular.
If for any
reason Work
Product does
not constitute
work for
hire, Consultant
irrevocably assigns
(and will
perform all
acts necessary
to make
such
assignment,
including
agreements
from
its
Personnel
or
Subcontractors)
to
Popular,
for
no
additional
consideration, the entire right, title, and interest throughout the world in and to such Work Product.
7.
LIABILITY; INDEMNIFICATION
7.1
Indemnity.
Each Party shall
indemnify,
hold harmless, and
defend the other
Party and each
of its
affiliates and
their
respective
officers,
directors,
employees,
agents,
successors,
and
assigns
(collectively,
“
Indemnitees
”)
against
losses,
damages,
liabilities,
deficiencies,
claims,
actions,
judgments,
settlements,
interest,
awards,
penalties,
fines,
costs,
or
expenses,
including
professional
fees
and
reasonable
attorneys’
fees
(collectively,
“
Losses
”), related
or incidental
to, or
arising out
of: (i)
the actual
or alleged
violation of
Laws; (ii)
actual or
alleged act, failure
to act or
omission, constituting fraud,
negligence or willful
misconduct relating to
the Services
(iii)
a
third-Party
claim,
suit,
or
proceeding
arising
out
of,
related
to,
or
alleging
infringement
of
intellectual
property right by the Work Product or any Intellectual Property
used to provide the Services or
made available to
Popular
as
part
of
the
Services;
or
(iv)
claims
alleging
injury
or
damage
to
persons
or
property
caused
by
Consultant during the provision of its
Services. The indemnification obligations shall survive the
termination of
the Agreement.
7.2
Limitation
of
Liability.
NEITHER
PARTY
SHALL
BE
LIABLE
TO
THE
OTHER
PARTY
FOR
ANY
INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING LOSS
OF
PROFITS,
REVENUE,
BUSINESS
OR
SAVINGS,
WHETHER
IN
AN
ACTION
IN
CONTRACT
OR
TORT,
EVEN IF
SUCH DAMAGES
ARE POSSIBLE
OR FORESEEABLE.
LIABILITY FOR
GENERAL
CLAIMS FOR BREACH
OF CONTRACT WILL
BE LIMITED TO
AN AMOUNT EQUIVALENT
TO THE
FEES FOR SERVICES
PAID
OR PAYABLE
BY POPULAR TO CONSULTANT
DURING THE TWENTY-
FOUR MONTHS
PRIOR TO
THE DATE
OF THE
CLAIM.
NOTWITHSTANDING
ANYTHING TO
THE
CONTRARY HEREIN, THE LIMITATIONS
SET FORTH IN THIS SECTION SHALL NOT APPLY
IN THE
EVENT OF EITHER PARTY’S
GROSS NEGLIGENCE, WILLFUL MISCONDUCT,
FRAUD, VIOLATION
OF LAW (INCLUDING THOSE
RELATED TO PRIVACY AND DATA
PROTECTION), OR
THIRD-PARTY
CLAIMS FOR INTELLECTUAL PROPERTY INFRINGEMENT.
8.
RESTRICTIVE COVENANTS
8.1
Non-Compete. During
the Term of
this Agreement,
Consultant agrees
that he
will not
work or
associate (including
as a
director, officer,
employee, partner,
consultant, agent
or advisor)
with or
otherwise provide
services to,
or
operate, manage or control in
any way,
a Competitive Enterprise performing the same
or similar duties as those
which
were
performed
by
him
during
the
12-month
period
immediately
preceding
the
Effective
Date
of
this
Agreement. “Competitive
Enterprise” means
any business
enterprise that
either (1)
engages in
commercial or
consumer financial
services, retail
banking, internet
banking, or
other financial,
investment, financial
advisor,
trust or insurance services to either commercial or consumer customers in
the Commonwealth of Puerto Rico or
the States of
New York
or Florida, or
(2) holds a
5% or greater
equity,
voting or profit
participation interest in
any enterprise that engages in such a competitive activity within the Commonwealth of Puerto Rico or the States
of New York or Florida.
8.2
Non-Solicitation of Customers.
During the Term
of this Agreement, Consultant agrees that he will
not, directly
or indirectly or through
associates, agents, or employees
solicit, participate in or
assist in the solicitation
of any
of
Popular’s
customers
serviced
by
him
or
with
whom
he
had
Material
Contact
and/or
regarding
whom
he
received Confidential Information (as defined in
Popular’s Code of Ethics) during
the three-year period prior to
Effective Date who
were still customers
of Popular during
the immediately preceding
12-month period, for
the
purpose of providing
products or
series in
competition with Popular’s
products or services.
“Material Contact”
7
means interaction between Consultant and the customer within the
three
-years prior to the Effective Date which
takes place to manage, service or further the business relationship.
8.3
Non-Solicitation of Popular Employees. During the Term
of this Agreement, Consultant agrees that
he will not,
directly or
indirectly or
through associates,
agents, or
employees solicit,
recruit or
assist in
the solicitation
or
recruitment of any employee or consultant
of Popular (or who was an
employee or consultant of Popular within
the prior
six months
of the
Effective Date)
for the
purpose of
encouraging them
to leave
Popular’s employ
or
sever an agreement for services.
8.4
Definition. The term “Solicit”, when used in this section, will mean any direct or indirect communication of any
kind regardless of who initiates it, that
in any way invites, advises, encourages
or requests any person to take any
action;
provided
that
such
term
will
not
be
deemed
to
include
solicitation
by
public
advertisement
media
of
general distribution (i.e.,
not targeted to present
employees, consultants or
customers of Popular) without
specific
instruction or direction by Consultant.
9.
GENERAL TERMS
9.1
Additional Representations
and Warranties
.
Each Party
represents and
warrants to
the other
Party that
(a)
the
Agreement will not violate the terms
of any other agreement or contract
to which such Party is bound
nor require
any third-party
consent or
approval; and
(b) the
Agreement constitutes
a valid
and binding
obligation of
such
Party, enforceable
against it in accordance with
its terms except to
the extent that enforceability may
be limited
by
bankruptcy,
insolvency,
receivership,
moratorium,
reorganization
or
other
similar
laws
affecting
the
enforcement of creditors’ rights generally or general principles of equity or considerations of public policy.
9.2
No Waiver.
The failure
or delay
by a
Party to
require performance
of the
other Party
of any
provision of
the
Agreement shall not
affect the
right of
such Party to
enforce the same
provision, nor shall
the waiver by
either
Party of
any breach
of any
provision hereof
be taken
or held
to be
a waiver
of any
succeeding breach
of such
provision, or as a waiver of the provision itself. The Parties may exercise any right or remedy in order to enforce
the terms and conditions of the Agreement.
9.3
Notice. All notices
or communication required hereunder
must be made
in writing to
the corresponding Party’s
contact and address. Legal
notices (including claims, breach
of contract, indemnification requests,
and regulatory
compliance issues)
from Consultant
to Popular
must be
sent by
messenger with
acknowledgement of
receipt,
certified mail
or
national courier
with copy
to the
Legal Representative
in
the same
manner.
Any
changes or
additions to the above contact information
must be notified in writing with
receipt acknowledged. Notification to
the Party’s contact of record shall be presumed correct.
9.4
Severability. Should a court or arbiter with competent jurisdiction determine that any clause is illegal, invalid, or
unenforceable under present or
future law,
such provision will
be fully severable,
and the remaining
provisions
of the Agreement will remain in full force and effect.
9.5
Governing Law and Jurisdiction. The Agreement and all transactions
contemplated therein will be governed by,
and construed and enforced in
accordance with, the laws of
the Commonwealth of Puerto Rico,
without regard to
any
conflicts
of
law
provisions
thereof.
Any
civil
action
or
legal
proceeding
arising
out
of
or
relating
to
the
Agreement will be brought exclusively in
the courts of the Commonwealth of
Puerto Rico. Each Party consents
to the jurisdiction of
such court in any
such civil action or
legal proceeding and
waives any objection to
the venue
of any
such civil
action or legal
proceeding in
such court.
EACH PARTY KNOWINGLY AND VOLUNTARILY
WAIVES
ANY RIGHT
TO A
TRIAL BY
JURY
IN ANY
ACTION OR
PROCEEDING TO
ENFORCE OR
DEFEND ANY RIGHTS OR DUTIES UNDER THIS AGREEMENT.
9.6
Assignment.
Popular
may
assign,
whether
voluntarily
or
involuntarily,
by
operation
of
law
or
otherwise,
the
Agreement or any rights
or obligations under the
Agreement to any subsidiary
or affiliate without providing
prior
8
written notice to Consultant.
Consultant may not assign,
whether voluntarily or involuntarily, by operation
of law
or
otherwise
his
rights
and
obligations
under
the
Agreement
without
Popular’s
prior
written
consent,
which
consent
may
be
withheld
at
Popular’s
convenience
which
may
include
following
its
vendor
management
procedures prior to allowing the assignee to provide the Services.
9.7
Entire Agreement
and Amendments.
The Agreement
and any
Annex, Schedule,
appendix, exhibit,
certificate,
amendment or other document
attached or subsequently attached
hereto or to which
reference is made herein
will
be incorporated and made a part hereof as if fully set forth herein and will be subject to the terms and conditions
hereof and together with the Agreement will
constitute the entire contract between the Parties,
and supersedes all
prior or
contemporaneous agreements
or understandings,
written or
oral,
concerning the
subject matter
of
the
Agreement. The
Agreement may
not be
modified, amended
or supplemented
in any
manner except
by mutual
agreement of the Parties and set forth in a writing signed by a duly authorized representative of each Party.
9.8
No Third-Party Beneficiaries.
The Agreement shall be
binding upon and
inure to the
benefit of the
Parties and
their respective successors and
permitted assigns and, unless otherwise
agreed to by the
Parties, nothing herein,
express or
implied, is
intended to
or shall
confer upon
any other
person any
legal or
equitable right,
benefit or
remedy of any nature whatsoever under or by reason of the Agreement.
9.9
EACH
PARTY
ACKNOWLEDGES
THAT,
BEFORE
EXECUTING
THIS
AGREEMENT,
SUCH
PARTY
HAS
HAD
THE
OPPORTUNITY
TO
SEEK
THE
ADVICE
OF
INDEPENDENT
LEGAL
COUNSEL
(WHETHER OR NOT IT
ACTUALLY ELECTED TO DO SO), AND HAS READ
AND UNDERSTOOD ALL
OF
THE
TERMS
AND
PROVISIONS
OF
THIS
AGREEMENT.
THIS
AGREEMENT
SHALL
NOT
BE
CONSTRUED AGAINST ANY PARTY
BY REASON OF THE DRAFTING OR PREPARATION
HEREOF.
9.10
Counterparts. The Agreement
may be
executed in one
or more
counterparts, each of
which will be
deemed an
original, but all of
which taken together will
constitute one and the
same instrument. Signatures to
the Agreement
transmitted by
electronic mail
in .pdf
form, or
by any
other electronic
means intended
to preserve
the original
graphic
and
pictorial
appearance
of
a
document,
will
have
the
same
effect
as
physical
delivery
of
the
paper
document
bearing
the
original
signature.
The
Parties
may
sign
the
Agreement
using
DocuSign,
or
any
other
electronic signature application.
9.11
Electronic
Signature.
Each
Party
represents
that
if
the
Agreement
is
executed
with
an
electronic
signature
application,
the
electronic
signatures
are
the
same
as
handwritten
signatures
for
the
purposes
of
validity,
enforceability, and admissibility and will not dispute the
legally binding nature thereof
on the basis that the
terms
were
accepted
with
an
electronic
signature.
Furthermore,
the
Parties
agree
they
(a)
shall
comply
with
all
applicable electronic records and
signatures laws, including but
not limited to the Electronic
Signatures in Global
and
National
Commerce
Act;
and
(b)
shall
ensure
that
their
respective
electronic
signatures
vendor
has
the
necessary processes and controls to comply with the confidentiality obligations of the Agreement.
Signature Page Follows
9
IN WITNESS WHEREOF,
the Parties have executed this Agreement on February 25, 2025.
Popular, Inc.
Consultant
/s/ Eduardo Negrón
/s/ Ignacio Alvarez
Name: Eduardo Negrón
Name: Ignacio Alvarez
Title: Executive Vice President and Chief Administration
Officer