Program Description. The Company has developed a program
(the “Program”) for providing funding for merchants (“Merchants”)
by purchasing at a discount the future business receipts of such Merchants (“Receipts”),
including but not limited to, credit-card,
debit card, bank card and/or other charge card receipts. Funding provided to a Merchant
by the Company is to be memorialized
in an agreement between the Company [and such Merchant in a form acceptable to the
Company (a “Merchant Agreement”).
During the term of this Agreement, ISO, acting as an independent contractor, may assist
the Company by marketing and promoting
the Program to interested Merchants, and assisting such Merchants with the completion
and submission of applications for
acceptance into the Program, in a form acceptable to the Company. Only the Company,
directly or through its Affiliates, is
authorized to accept, ratify, or finalize any Merchant Agreement and accept a Merchant
into the Program. The Company may, at
its sole and absolute discretion, decline to accept any Merchant in the Program for any
reason whatsoever. ISO shall not hold out
that it has any right to accept or decline a Merchant’s application, nor will it
represent to any Merchant or third party that it has the
right to: (a) accept a Merchant into the Program; (b) negotiate or accept a Merchant
Agreement; (c) modify a Merchant Agreement
in any way; or (d) bind the Company] legally or otherwise. No Merchant Agreement will be
legally or otherwise binding on the
Company until accepted in writing by a duly authorized officer of the Company. Company
may establish rules, requirements,
guidelines, or other conditions (“Program Rules”) for participation in the Program.
Program Rules may be detailed in one or more
separate documents.
ISO Identification. In the course of carrying out its
obligations hereunder, ISO will clearly identify itself with its own name, while
also clearly disclosing to all third parties that it is authorized by the Company to
promote the Program.
ISO Parties. ISO agrees that its actions and the actions
of its shareholders, affiliates, directors, officers, employees, independent
contractors, representatives, agents, principals, successors, assigns and associates
(each an “ISO Party”) under or in connection
with this Agreement will be governed, controlled, and directed by, and will be in full
compliance with, the terms of this Agreement.
ISO further agrees that the actions of an ISO Party will at all times, and in respect of
all parties and third parties, be construed as
an action taken by ISO subject to the terms hereof. ISO will ensure that each ISO Party
abides by the obligations of ISO under
this Agreement. ISO will ensure that each ISO Party is adequately trained to perform
hereunder and conform to all of the provisions
of this Agreement. As used herein, an “affiliate” of a specified person, means a person
who directly or indirectly, through one or
more intermediaries, controls or is controlled by or is under common control with the
person specified.
Compensation. In consideration for the services rendered
by ISO hereunder, the Company agrees to pay ISO in accordance with
the Compensation Schedule annexed hereto (“Compensation”). ISO acknowledges and agrees
that the Company may, at its sole
discretion, amend the terms of the Program, including, without limitation the pricing
thereof and the amounts of Compensation
payable hereunder without prior notice to or consent from ISO. Compensation shall be
paid to ISO for each Merchant referred to
the Company by ISO, only if: (a) the Merchant and the Company enter into a Merchant
Agreement that results as a direct result
of the referral by ISO and Company provides funding to such Merchant pursuant to the
Merchant Agreement; and (b) the Merchant
Agreement is executed by Merchant within 30 days of ISO’s referral. Payment shall be due
within the time period specified in the
Compensation Schedule or, if no time period is specified, within 30 calendar days
following the Company’s advance of funds to
Merchant as specified in the Merchant Agreement. ISO will be solely responsible for any
and all expenses incurred by ISO in
performance of its services hereunder including, but not limited to, expenses related to
any ISO Party.
Return of ISO Compensation. ISO shall immediately repay
any and all Compensation received in respect of a referred Merchant,
if any of the following shall occur within 45 days after the execution of the Merchant
Agreement by such Merchant: (a) the
Merchant defaults under the Merchant Agreement; (b) the Merchant becomes insolvent, or
applies for bankruptcy or other relief
from creditors, or (c) on 21 or more daily payments or 5 weekly payments, a scheduled
debit of a Merchant’s account designated
for a payment pursuant to a Merchant Agreement is returned due to insufficient funds.
Marketing and Promotional Materials. Marketing and
promotional materials used by ISO to promote the Program must include
a Merchant application and a Merchant Agreement, in a form prescribed by the Company and
subject to revision and/or
amendment from time to time. The Company’s marks, including its name and logo (the
“Marks”) may be used by ISO in conjunction
only with marketing and promotional material approved by the Company. ISO acknowledges
and agrees that (a) the Marks are
owned by the Company; (b) ISO will do nothing inconsistent with such ownership; (c) all
use of the Marks by ISO will inure to the
benefit of and be on behalf of the Company; (d) nothing in this grant gives ISO any
right, title or interest in the Marks; and (e) ISO
agrees to use the Marks only in the form and manner prescribed from time to time by the
Company and not to use any other
trademark or service mark in combination with any of the Marks other than ISO’s name
without the prior written consent of the
Company. ISO agrees, at its own expense, to defend Company against, indemnify Company
for, and hold Company harmless
from and against any and all claims, suits, actions, proceedings, judgments, damages,
liabilities, costs and expenses including
reasonable attorneys’ fees arising either from the use of the Marks by ISO, any ISO
Party, or any third party authorized by ISO,
other than a claim based on an assertion by a third party either that the Company does
not own the Marks or does not have the
authorization to use the Marks. Upon termination of this Agreement, any permission or
right to use the Marks granted hereunder
will cease to exist and ISO will immediately cease any use of the Marks. Under no
circumstances will ISO have any right, in the
course of carrying out its obligations hereunder, to offer or present any material
(printed, electronic, or otherwise) with the Marks
to any Merchant or any other third party that has not been supplied by the Company or
approved in advance in writing by the
Company.
ISO Misconduct and Non-Interference. During the course
of a Merchant’s application process and for so long as a Merchant’s
obligations to the Company under a Merchant Agreement remain outstanding, ISO shall not
do, or permit any ISO Party to do any
of the following:
-
Distort, alter, or change any Merchant application, statements, or supporting
documentation provided to the Company (or
encourage a Merchant to do the same).
- Refer a Merchant to a third party, other than the Company, with which Merchant
enters into an agreement for the sale of
Receipts, or any other form of financing (including factoring, leasing, or loan
agreements).
- Cause or attempt to cause any Merchant to terminate its relationship with the
Company.
- Cause or solicit a Merchant to change its bank account or terminate or alter its
credit card processing to another bank or
processor without the prior written consent of Company.
- Otherwise interfere, in any manner whatsoever, either directly or indirectly by any
arrangement whatsoever, with the
Company’s contractual relationship with any Merchant, or knowingly cause or attempt
to cause a Merchant to breach its
obligations under an existing Merchant Agreement with the Company, or induce or
attempt to induce any Merchant to do so.
Upon the occurrence of any of the events specified above (“ISO
Misconduct”), the parties agree that such ISO Misconduct will
amount to tortious interference with the Company’s business. Furthermore, the parties
agree that the Company will suffer a
substantial injury for which it is impracticable or extremely difficult to fix actual
damages. In an effort to liquidate in advance the
sum that should represent such damages, ISO agrees to repay to the Company all
compensation received by ISO from the
Company with respect to each Merchant that is the subject of ISO Misconduct, all costs
associated with underwriting the
Company’s transactions with such Merchants, and an amount equal to the balance of any
undelivered Receipts purchased, under
the related Merchant Agreements (the “Liquidated Damages Amount”). ISO acknowledges that
the actual damages likely to result
from breach of this section are difficult to estimate on the date of this Agreement and
would be difficult for the Company to prove.
The parties intend that ISO’s payment of the Liquidated Damages Amount would serve to
compensate the Company for any ISO
Misconduct, and they do not intend for it to serve as punishment for such ISO
Misconduct. Notwithstanding the foregoing, the
Company reserves the right to seek immediate injunctive relief and damages associated
with ISO Misconduct. If the Company
pays Compensation by means of electronic funds transfer (such as ACH settlements) then
ISO agrees that the Company,
immediately after notifying ISO of the ISO Misconduct, may collect the Liquidated
Damages Amount by way of an electronic funds
transfer directly from the account used to pay Compensation to ISO. In addition, the
Company may deduct the Liquidated Damages
Amount from future Compensation owed to ISO until the Liquidated Damages Amount is paid
in full.
ISO Representations, Warranties, and Covenants. ISO
represents, warrants, and covenants to and for the benefit of the
Company that as of the date hereof, as of the date of each Merchant application
submitted to the Company by ISO, and during
the term of this Agreement:
- ISO is duly organized, validly existing, and in good standing under the laws of the
State where it is organized.
- ISO is properly licensed and qualified to transact business in all jurisdictions
where it conducts activities contemplated by this
Agreement.
- ISO has full authority and corporate power to enter into this Agreement and to
perform its obligations under this Agreement.
- ISO’s performance under this Agreement does not and will not violate any applicable
law or regulation or any agreement to
which ISO is or may be bound.
- This Agreement represents a valid obligation of ISO and is fully enforceable against
it.
- Neither ISO nor any of its affiliates is a party to any pending litigation that
would have an impact on the Program or this
Agreement or has ever been fined or penalized by VISA, MasterCard, NACHA, or any
other association in the credit,
payments, financial or banking industry, or fined or investigated by a state or
federal regulatory authority or charged with any
financial crime.
- Neither ISO nor any of its affiliates is named on the Member Alert to Control
High-Risk Sellers list of MasterCard, or any other
similar list.
- ISO will not sell, purchase, provide or exchange credit card, debit card or bank
account numbers or Merchant information, or
any information collected or received hereunder, to any third party without the
prior written consent of the Company.
- ISO will not act in such a way as to cause any direct or indirect damage to the
business or name of the Company or any of
its affiliates.
- ISO will comply with any and all policies and guidelines established by the Company
from time to time for marketing and
promoting the Program Rules.
- ISO will accurately describe the Program to Merchants.
- ISO will not make claims to Merchants about Company’s fees, rates, costs, terms,
benefits, or pricing unless ISO has a
reasonable basis to substantiate that such claims are true.
- ISO will immediately inform the Company of any changes in the address, ownership of
business, or operations of ISO or of
any Merchant referred by ISO that has entered into a Merchant Agreement.
- During the course of a Merchant’s application process and for so long as a
Merchant’s obligations to the Company under a
Merchant Agreement remain outstanding, ISO shall promptly notify the Company of any
adverse and/or negative information
of material importance relating to such Merchant that ISO may learn in the course of
its business.
- ISO will deliver to the Company all documents required to form a complete Merchant
application according to the Program
Rules, as they may be amended from time to time,
- ISO will disclose to Merchants the compensation that the ISO will receive from the
Company in connection with the Program.
- ISO will not refer a Merchant to the Company if ISO knows the Merchant is
misrepresenting information on an application
and/or during the underwriting process.
- Neither ISO nor any ISO Party shall collect fees or compensation of any kind
directly from a prospective or approved Merchant
for assistance in obtaining an application or approval to the Program. Any such
funds received by ISO from a Merchant shall
be held by ISO in trust for the benefit of the Company and ISO shall immediately
remit such funds to the Company.
Term and Termination. The term of this Agreement shall
begin on the date appearing on the first page hereof and will continue
for an initial term of one year. After the initial term, this Agreement shall
automatically renew for successive one-year terms. This
Agreement can be terminated at any time by either party upon 5 days written notice
provided to the other party in the manner
described in this Agreement. This Agreement may also be terminated immediately by the
Company upon breach by ISO of any
of its obligations herein. The Company will have the absolute right to assign this
Agreement, which assignment will in no way
constitute a termination. No termination of this Agreement will affect: (a) any Merchant
Agreement in effect as of the date of
termination of this Agreement, (b) any rights of Company with respect to any Merchant or
Company’s ability to enter into additional
transactions with any Merchant, or (c) any right of the Company with regards to the
collection of fees owed, or ISO’s liabilities.
ISO will fully cooperate with the Company throughout the remaining term of each Merchant
Agreement between the Company
and any Merchant referred by ISO prior to the termination of this Agreement. All
agreements that by their context are intended to
survive the termination of this Agreement, will survive termination of this Agreement.
Indemnification. ISO shall indemnify and hold harmless
the Company, its affiliates and their respective members, directors,
officers, employees, and agents from and against any and all third party liabilities,
claims, losses, and damages (including
reasonable attorney fees, expert witness fees, expenses and costs of settlement) arising
out of or with respect to this Agreement,
to the extent that the claim, liability, loss or damage is caused by, relates to or
arises out of: (i) the breach by ISO of any of its
duties, obligations, representations or warranties under this Agreement, (ii) the
negligence of ISO, pursuant to this Agreement,
including but not limited to ISO’s misrepresentation of the Programs.
Setoff. In addition to any right of setoff described
above, ISO agrees that the Company may deduct from any funds that it may
hold or owe to ISO, and Company may apply such funds to reduce the balance of any
amounts due to the Company from ISO
under this Agreement, or any other agreement between the parties.
Remedies. Without limiting the foregoing, in the event
of a breach of this Agreement by ISO or any ISO Party, the Company shall
be entitled to apply to a court of competent jurisdiction for an injunction to restrain
such breach, without the need for bond, and
the Company shall have no obligation to make any further compensation or other payment
to ISO that might otherwise come due
after such breach, if ISO does not cure the breach within 10 calendar days after notice
thereof. Any remedies hereunder shall be
in addition to any other remedies available to the Company in law or in equity.
Assignment; Successors; Amendments. ISO may not assign
any right or obligation under this Agreement to any third party
without prior written consent of the Company, including an assignment by virtue of a
sale of ISO’s business. The Company may
assign its rights and obligations hereunder with notice to the ISO. This Agreement shall
inure to the successors and permitted
assigns of the parties hereto. This Agreement may be amended by a written agreement
executed by both parties hereto; provided,
however, that Company may amend this Agreement, any Program Rules, and the Compensation
Schedule, by a separate writing
which is delivered to ISO (which may be delivered electronically) by the Company. ISO’s
submission of a Merchant application to
the Company on or after delivery of an amendment shall constitute ISO’s acceptance of,
and agreement to, such amendment.
Confidential Information.
Definition. “Confidential Information” means all
proprietary, secret, or confidential information or data relating to either party or
their affiliates and their respective operations, employees, products or services,
clients, customers, or potential customers.
Confidential Information shall include customer lists, card member account numbers,
pricing information, computer access codes,
instruction and/or procedural manuals, and the terms and conditions of this Agreement.
Information shall not be considered
Confidential Information to the extent, but only to the extent, that such information
is: (a) already known to the receiving party free
of any restriction at the time it is obtained; (b) subsequently learned from an
independent third party free of any restriction and
without breach of this Agreement; (c) becomes publicly available through no wrongful act
of the receiving party; (d) is independently
developed by the receiving party without reference to any Confidential Information of
the other; or (e) is required to be disclosed
by law.
Disclosure of Confidential
Information. Each party acknowledges that it may directly or indirectly
disclose Confidential Information
to the other party in the course of negotiation of and performance of this Agreement.
All such Confidential Information disclosed
hereunder shall remain the sole property of the disclosing party (or other third party),
and the receiving party shall have no interest
in, or rights with respect thereto, except as set forth herein. Each party agrees to
treat such Confidential Information with the same
degree of care and security as it treats its most confidential information. Each party
may disclose such Confidential Information to
employees and agents who require such knowledge to perform services under this
Agreement. Except as otherwise contemplated
by this Agreement, neither party shall disclose the Confidential Information of the
other party to any third party without the prior
written consent of the disclosing party, and the duty of confidentiality created by this
section shall survive any termination of this
Agreement.
Notices. Unless otherwise specified herein, any notices
or other communications required or permitted hereunder shall be
sufficiently given if in writing and delivered personally or sent by internationally
recognized overnight courier, registered or certified
mail (postage prepaid with return receipt requested) to the address of the Company or
ISO set forth on the signature page of this
Agreement. Such notices or other communications shall be deemed received (a) on the date
delivered, if delivered personally, (b)
on the business day after being sent by an internationally recognized overnight air
courier or (c) 5 days after being sent, if sent by
first class registered or certified mail, return receipt requested.
Governing Law and Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the state
of New York, without regards to any applicable principals of conflicts of law. Any suit,
action or proceeding arising hereunder, or
the interpretation, performance, or breach of this Agreement, shall, if Company so
elects, be instituted in any court sitting in
Dutchess County, New York, (the “Acceptable Forums”). ISO agrees that the Acceptable
Forums are convenient to it, and submits
to the jurisdiction of the Acceptable Forums and waives any and all objections to
jurisdiction or venue. Should such proceeding
be initiated in any other forum, ISO waives any right to oppose any motion or
application made by Company to transfer such
proceeding to an Acceptable Forum.
Entire Agreement. This Agreement embodies the entire
agreement and understanding between ISO and the Company and
supersedes all other prior agreements and understandings relating to the subject matter
hereof. ISO and the Company may enter
into further and additional written agreements to amend or supplement this Agreement and
the terms and provisions of such
further and additional written agreements shall be deemed a part of this Agreement as
though incorporated herein; provided,
however, this Agreement may not be modified, amended, supplemented, or otherwise altered
except by a writing signed by both
parties.
Relationship of Parties. ISO is an independent
contractor hereunder and the relationship arising from this Agreement does not
constitute or create a general agency, joint venture, partnership, employee relationship
or franchise between ISO and the
Company. The Company intends no contract of employment, express or implied, with either
ISO or any ISO Party; and neither
ISO nor any ISO Party will make any representations to the contrary. Neither ISO nor any
ISO Party has obtained any right to
employment or compensation as an employee or any other benefits of an employee by way of
this Agreement. ISO agrees that it
will be solely responsible for the purchase and maintenance of employment or workers
compensation insurance coverage and all
taxes related to its employees, and that Company will have no responsibility for any
such liabilities.
Non-Exclusivity. This Agreement does not grant ISO any
exclusive right or privileges to provide to Company any services of the
type described in this Agreement. Company may contract with third parties for services
comparable to those described in this
Agreement, and Company may itself perform such services. For purposes of clarity,
nothing in this Agreement is intended to limit
the rights of Company with respect to any Merchant, and the Company reserves the right
to market the Program directly at any
time to any Merchant, and shall be entitled to accept applications directly from any
Merchant.
Limitation of Liability. The Company shall not be liable
hereunder to ISO or any third party for any liquidated, indirect,
consequential, exemplary or incidental damages (including damages for loss of business
profits, business interruption, loss of
business information, and the like) arising out of this Agreement even if the party at
fault has been advised of the possibility of
such damages.
Severability. If any provision hereof is for any reason
determined to be invalid, such provision shall be deemed modified so as to
be enforceable to the maximum extent permitted by law consistent with the intent of the
parties as herein expressed, and such
invalidity shall not affect the remaining provisions of this Agreement, which shall
continue in full force and effect.
Interpretation. All parties hereto have reviewed this
Agreement with an attorney of their own choosing and have relied only on
their own attorney’s guidance and advice. No construction determinations shall be made
against either party hereto as drafter.
Counterparts and Agreement Acceptance. This Agreement
may be executed in any number of counterparts and by the different
parties on separate counterparts. Each such counterpart shall be deemed an original, but
all such counterparts shall together
constitute one and the same agreement. The exchange of copies of this Agreement and of
signature pages by facsimile
transmission (whether directly from one facsimile device to another by means of a
dial-up connection or whether mediated by the
worldwide web), by e-mail in “portable document format” (“.pdf”) form, or by any other
electronic means intended to preserve the
original graphic and pictorial appearance of a document, or by combination of such
means, shall constitute effective execution
and delivery of this Agreement as to the parties and may be used in lieu of the original
Agreement for all purposes. Signatures of
the parties transmitted by facsimile shall be deemed to be their original signatures for
all purposes.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first written above.
