AFFILIATE SALES AGREEMENT (REVENUE SHARE)

Transcription

1 AFFILIATE SALES AGREEMENT (REVENUE SHARE) This AFFILIATE SALES AGREEMENT (the "Agreement") is made and entered into as of this day of, 20 by and between Fattmerchant Inc. ( Fattmerchant ), a Delaware Corporation with its principal place of business at 100 S. Orange Ave, Orlando, FL 32801, and, a ), whose principal place of business is. In consideration of the mutual promises contained herein, Fattmerchant and Affiliate agree as follows: 1. Services to Be Performed Fattmerchant agrees to perform, or cause to be performed, Card Processing Services on behalf of Signed Merchants. 2. Obligations of Affiliate Affiliate shall use commercially reasonable efforts to cause Merchants to enter into Merchant Agreements and become Signed Merchants with Fattmerchant and/or its Acquirer in accordance with Fattmerchant s and its Acquirer s procedures and instructions. Affiliate shall make no representations or warranties regarding Fattmerchant, its Acquirer, or the Payment Processing Services other than as specifically provided herein. Affiliate shall comply with all Federal, state and local laws, rules and regulations that are applicable to their activities under this Agreement. Affiliate will also comply with the rules and regulations of all Payment Brands. Affiliate agrees that Fattmerchant and its Acquirer each reserves the right to decline or accept Merchants based upon their own acceptance criteria and in their sole discretion. Fattmerchant reserves the right to modify Merchant selection criteria at any time without notice. Affiliate acknowledges that Fattmerchant and its Acquirer reserves the right to cease processing Merchant transactions at any time in accordance with the terms of the Merchant Agreement. Affiliate agrees to notify Fattmerchant immediately if it determines that fraudulent or otherwise improper transaction activity is being conducted by a Signed Merchant. Affiliate and/or the Signed Merchants will be responsible for the installation, servicing and maintenance of the point- of- sale devices and related equipment at Signed Merchants facilities, and will likewise be responsible for the connection of those devices to Fattmerchant s or its Acquirer s designated systems in compliance with Fattmerchant s and its Acquirer s requirements. Affiliate will comply with all Payment Brand rules and Fattmerchant s instructions relating to the marketing of Payment Processing Services. All advertising and/or sales materials used by Affiliate shall be (i) prepared by Affiliate at Affiliate s expense, (ii) in compliance with the Payment Brand rules, and (iii) approved by Fattmerchant in writing before being used. Affiliate will: (i) conduct business in a manner that reflects favorably at all times on the Card Processing Services and the good name, good will and reputation of Fattmerchant; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to Fattmerchant, Fattmerchant s services or the public; (iii) make no false or misleading representations with regard to Fattmerchant or the Card Processing Services; (iv) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to Fattmerchant or the Card Processing Services; (v) promote proper use of Card Processing Services, and (v) make no representation, warranties or guarantees to potential Merchants with respect to the specifications, features or capabilities of the Card Processing Services that are inconsistent with the literature distributed by Fattmerchant. 3. Collateral Documents and Agreements Each Merchant Agreement must be on forms provided by Fattmerchant or the Acquirer. Affiliate agrees to submit all pricing schedules and other exhibits, schedules, attachments, addenda, any and all other agreements with a Signed Merchant relating in any way to Fattmerchant s Processing Services and the like, whether or not included with or made a part of the Merchant Agreement (collectively, Collateral Documents ) to Fattmerchant for review and approval prior to use. Affiliate represents and warrants to Fattmerchant that

2 the Merchant Agreement and the Collateral Documents (i) comply with all applicable laws and the Payment Brand rules; (ii) do not contain any untrue statement or omit to state a material fact necessary to make any statement made therein, in light of the circumstances in which it was made, not misleading; and (iii) do not contain any statement that may materially adversely affect the relationship between Fattmerchant and the Signed Merchant. Affiliate agrees to leave signed copies of the Merchant Agreement and all Collateral Documents with each Signed Merchant after such documents have been signed by the Signed Merchant. Fattmerchant s approval of the Merchant Agreement and the Collateral Documents will not in any way relieve Affiliate from its responsibility for losses and liabilities that may result from Affiliate s violations of the representations and warranties contained herein. 4. Payment In consideration for the services to be performed by Affiliate, Fattmerchant agrees to pay Affiliate according to the terms of payment set forth below. Fattmerchant will use commercially reasonable efforts to pay Affiliate no later than the last business day of the month following the month upon which such payments are based. If Affiliate believes that any adjustments should be made to its account, Affiliate must notify Fattmerchant in writing within 30 days after the debit or credit in question was made. Failure to notify Fattmerchant within such time period will result in Fattmerchant not being responsible for investigating or effecting any requested adjustments. 5. Terms of Payment Fattmerchant shall pay Affiliate the fees set forth in Schedule A attached to this Agreement ( Compensation ). Fattmerchant may collect for any amount owed by Affiliate to Fattmerchant pursuant to this Agreement or otherwise by applying and setting off against such Compensation. Notwithstanding anything else in this Agreement, only Signed Merchants who enter into a Merchant Agreement with Fattmerchant as a result of Affiliate s efforts hereunder will be included for purposes of calculating Compensation under this Agreement. No Compensation will be paid with respect to (i) any Signed Merchant with which Fattmerchant may sign a Merchant Agreement independently of any referral by Affiliate, including any Merchant with which Fattmerchant was having discussions prior to such referral by Affiliate; (ii) any Merchant who is already processing through Fattmerchant; and (iii) any Merchant who is referred to Fattmerchant by another third party. If Affiliate believes that any adjustments should be made to Affiliate s Compensation amount, Affiliate must notify Fattmerchant in writing within ninety (90) days after the debit or credit in question was made. Failure to notify Fattmerchant within such time period will result in Fattmerchant not being responsible for investigating or effecting any requested adjustments. 6. Expenses Affiliate shall be responsible for all expenses incurred while performing services under this Agreement. This includes license fees, memberships, and dues; automobile and other travel expenses; meals and entertainment; insurance premiums; and all salary, expenses, and other compensation paid to employees or contract personnel Affiliate hires to complete the work under this Agreement. 7. Non- Solicitation During the term of this Agreement, Affiliate may promote Payment Processing Services offered by any provider other than Fattmerchant to any Merchants at Affiliate s discretion. During the term of this Agreement and for a period of three (3) years after termination of this Agreement, Affiliate agrees not to engage, directly or indirectly through subsidiaries, affiliates, intermediaries or any other third parties, in any type of solicitation, sales, marketing or other activity designed to (i) sell or market Payment Processing Services or similar services offered by any provider other than Fattmerchant to any Signed Merchants, (ii) induce any Signed Merchants to refrain from doing business with Fattmerchant, or (iii) solicit or persuade any then- current director, officer, manager, member, agent, consultant or employee of Fattmerchant to terminate its relationship with Fattmerchant. 8. Term of Agreement This Agreement will become effective when signed by both parties and will continue for a period of one (1) year. Thereafter, this

3 Agreement will renew automatically for successive one- year terms, unless either party gives written notice of termination to the other party at least 90 days prior to the expiration of the original or any renewal term. Compensation to Affiliate will terminate immediately upon termination or expiration of this Agreement for any reason. 9. Termination A party may terminate this Agreement in its entirety effective thirty (30) days after written notice is given upon the occurrence of a material default by the other, provided that such default continues for more than thirty (30) days after receipt of notice of such default. Furthermore, a party may terminate this Agreement immediately upon written notice in the event the other party: (i) has failed to establish reasonable procedures for protecting the other party's Confidential Information or has intentionally disclosed the other party's Confidential Information, without permission; (ii) makes a general assignment for the benefit of creditors; (iii) applies for the appointment of a trustee, liquidator or receiver for its business or property, or one is assigned involuntarily, is subject to a proceeding for bankruptcy, receivership, insolvency, dissolution or liquidation or is otherwise adjudicated insolvent or bankrupt; (iv) breached any material Payment Brand rule or applicable law; (v) intentionally misrepresents the nature of a Merchant s business; (vi) submits a Merchant application to Fattmerchant that contains fraudulent information; or (vii) adopts general business practices that endanger the financial soundness of Fattmerchant's merchant processing business as determined by Fattmerchant in its sole discretion. Termination by either party shall not relieve either party from any obligation accrued through the date of termination. In addition, the terms and conditions set forth in this Agreement which by their nature would continue beyond termination of this Agreement, including by way of illustration only and not limitation, the provision with respect to Confidential Information, shall survive the termination of this Agreement. 10. Indemnification and Liability. Affiliate agrees to indemnify, defend and hold Fattmerchant, its officers, partners, employees, agents and consultants harmless for all liabilities, losses, claims, damages, costs, and expenses (including reasonable attorneys fees) whenever arising or incurred that are caused or asserted to have been caused, directly or indirectly, by or as a result of (i) Affiliate s misrepresentations or false statements with regard to the terms and conditions of this Agreement; (ii) the performance or failure to perform or breach of this Agreement by Affiliate or its employees or agents; or (iii) any gross negligence or willful misconduct by Affiliate or its agents or employees. 11. Exclusion of Warranties; Certain Damages. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, GOODWILL OR LOSS OF PROFITS WHETHER OR NOT IT HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE NATURE OF THE CLAIM OR CAUSE OF ACTION (CONTRACT OR TORT), INCLUDING NEGLIGENCE. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT AND THE SCHEDULES ATTACHED HERETO, BOTH PARTIES MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, THE PARTIES EXPRESSLY DISCLAIM, AND EXPRESSLY WAIVE, ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO DESCRIPTIONS OR SPECIFICATIONS, WHETHER OR NOT INCORPORATED INTO THIS AGREEMENT, SHALL CONSTITUTE WARRANTIES OF ANY KIND. Notwithstanding anything in this Agreement or the Schedules to the contrary, the cumulative aggregate liability of Fattmerchant for all losses, claims, suits, controversies, breaches or damages for any cause whatsoever (including but not limited to those arising out of or related to this Agreement) and regardless of the form of action or legal theory shall be limited to the total Compensation paid by Fattmerchant to Affiliate under this Agreement for the six months prior to the time the liability arose. THE PARTIES UNDERSTAND AND ACKNOWLEDGE THAT FATTMERCHANT MAY BE USING THIRD PARTY VENDORS TO PERFORM CERTAIN SERVICES OR SUPPLY CERTAIN GOODS NECESSARY TO ITS PERFORMANCE UNDER THIS AGREEMENT.

4 FATTMERCHANT SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED BY CONTRACTOR OR ANY THIRD PARTIES RELATED TO SUCH SERVICES OR PRODUCTS. 12. Materials, Equipment, and Office Space Affiliate will furnish all materials, tools, equipment, and internet access used to provide the services required by this Agreement. 13. Independent Affiliate Status Affiliate is an independent contractor, and neither Affiliate nor Affiliate's employees or contract personnel are, or shall be deemed, Fattmerchant's employees. Affiliate has the sole right to control and direct the means, manner, and method by which the services required by this Agreement will be performed, and has the right to perform the services required by this Agreement at any place or location and at such times as Affiliate may determine. Affiliate has the right to hire assistants as subcontractors or to use employees to provide the services required by this Agreement, subject to Affiliate s obligation to be responsible for the actions of all such subcontractors and employees. Neither Affiliate nor Affiliate's employees or contract personnel shall receive any training from Fattmerchant in the professional skills necessary to perform the services required by this Agreement. Fattmerchant shall provide access to information regarding systems and processes specific to the services required by this Agreement, but it is the full responsibility of Affiliate to discover, learn, and become proficient at said systems and processes. Neither Affiliate nor Affiliate's employees or contract personnel shall be required by Fattmerchant to devote full time to the performance of the services required by this Agreement. 14. Compliance Affiliate shall comply with all federal, state, and local laws and all Payment Brand rules, each as may be amended from time to time, applicable to Affiliate s activities related to this Agreement. Affiliate agrees to comply with all laws and regulations concerning privacy and security and with all security standards and guidelines that may be published from time to time by Fattmerchant, its Acquirers, Visa, MasterCard or any other Payment Brand, including, without limitation, the Visa U.S.A. Cardholder Information Security Program, Fattmerchant or its Acquirer s customer identification guidelines, the Bank Secrecy Act, anti- money laundering laws, OFAC, the USA Patriot Act and the rules and regulations of any debit network or federal or state department or agency having jurisdiction over the activities of Fattmerchant or Affiliate (collectively, the "Rules"). In the event of any inconsistency between any provision of this Agreement and the Rules, the Rules shall govern. Affiliate will comply with all applicable international, national, state, regional and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the services contemplated by this Agreement. Affiliate shall use only those marketing and promotional materials that comply with the Rules and all United States, state, local and any other applicable laws or regulations. Affiliate understands that failure to comply with the Rules may result in fines and/or penalties by the Payment Brands, and Affiliate agrees to indemnify and reimburse Fattmerchant immediately for any fine or penalty imposed due to Affiliate s breach of this Section or any violation of the Rules. 15. State and Federal Taxes Fattmerchant will not (i) withhold FICA (Social Security and Medicare taxes) from Compensation or make FICA payments on Affiliate's behalf, (ii) make state or federal unemployment compensation contributions on Affiliate's behalf, or (iii) withhold state or federal income tax from Affiliate's payments. Affiliate shall pay all taxes incurred while performing services under this Agreement, including all applicable income taxes and, if Affiliate is not a corporation, self- employment (Social Security) taxes. Upon demand, Affiliate shall provide Fattmerchant with proof that such payments have been made. 16. Fringe Benefits Affiliate understands that neither Affiliate nor Affiliate's employees or contract personnel are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of Fattmerchant. If Affiliate is subsequently classified by the IRS as a common law employee, Affiliate expressly waives his or her rights to any benefits to which he or she was, or might have become, entitled. 17. Workers' Compensation Fattmerchant shall not obtain workers'

5 compensation insurance on behalf of Affiliate or Affiliate's employees or contract personnel. If Affiliate hires employees to perform any work under this Agreement, Affiliate will cover them with workers' compensation insurance to the extent required by law and provide Fattmerchant with a certificate of workers' compensation insurance before the employees begin the work. 18. Unemployment Compensation Fattmerchant shall make no state or federal unemployment compensation payments on behalf of Affiliate or Affiliate's employees or contract personnel. Affiliate will not be entitled to these benefits in connection with work performed under this Agreement. 19. Insurance Fattmerchant shall not provide any insurance coverage of any kind for Affiliate or Affiliate's employees or contract personnel. Affiliate shall indemnify and hold Fattmerchant, each Acquirer and all other affiliates of Fattmerchant harmless from any loss or liability arising from performing services under this Agreement. 20. Entire Agreement This Agreement and the schedules attached hereto constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all existing agreements and all other communications, written or oral. This Agreement may not be released, discharged or modified in any manner except in writing signed by both parties. 21. Confidentiality Affiliate acknowledges that it will be necessary for Fattmerchant to disclose certain Fattmerchant Confidential Information to Affiliate in order for Affiliate to perform duties under this Agreement. Affiliate acknowledges that any disclosure to any third party or any misuse of Fattmerchant Confidential Information would irreparably harm Fattmerchant. Accordingly, Affiliate will not disclose or use, either during or after the term of this Agreement, any Confidential Information of Fattmerchant without Fattmerchant's prior written permission except to the extent absolutely necessary to perform services on Fattmerchant's behalf or as agreed in writing by Fattmerchant. Affiliate shall not be restricted in using any material that is publicly available, already in Affiliate's possession prior to commencement of Affiliate's provision of services to Fattmerchant, already known to Affiliate without restriction, or rightfully obtained by Affiliate from sources other than Fattmerchant, Fattmerchant affiliates, or Fattmerchant partners. Upon termination of Affiliate's services to Fattmerchant, or at Fattmerchant's request, Affiliate shall deliver to Fattmerchant all materials in Affiliate's possession relating to Fattmerchant's business. Affiliate acknowledges that any breach or threatened breach of this clause will result in irreparable harm to Fattmerchant for which damages would be an inadequate remedy. Therefore, Fattmerchant shall be entitled to equitable relief, including an injunction, in the event of such breach or threatened breach of this clause. Such equitable relief shall be in addition to Fattmerchant's rights and remedies otherwise available at law. 22. Applicable Law This Agreement will be governed by the laws of the State of Florida, without giving effect to the principles of conflict of laws, and any dispute under this Agreement must be brought in the state or U.S. courts residing in Orange County, Florida and no other venue. 23. Notices All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: (i) when delivered personally, to the recipient's address as stated on this Agreement, (ii) three days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated on this Agreement, or (iii) when sent by fax or electronic mail, such notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first class mail, or the recipient delivers a written confirmation of receipt. 24. No Partnership This Agreement does not create a partnership relationship. Affiliate does not have authority to enter into Merchant Agreements or any other contracts on Fattmerchant's behalf. 25. Assignment Affiliate may not assign or subcontract any rights or delegate any of its duties under this Agreement without Fattmerchant's prior

6 written approval. 26. Advice of Counsel EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, 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. 27. Ownership Affiliate acknowledges and agrees that it will have no equity interest, ownership, or other rights in any Merchant Agreement or in the Card Processing Services provided. Further, Affiliate acknowledges and agrees that all Merchant Agreements, Merchant records, documentation, and the information contained therein are the property of and are owned by Fattmerchant and/or its vendors. 28. Definitions Acquirer. Acquirer means a financial institution, which is a member or authorized representative of a Payment Brand and is authorized to acquire Payment Instrument transactions, with which Fattmerchant has an independent sales organization or referral agreement. Card Processing Services. Card Processing Services means (i) all services necessary to authorize, data capture, process, settle and reconcile transactions effected by Merchants with Customers using Payment Instruments, (ii) all services necessary to authorize, data capture and process (and when permitted by the applicable Payment Brand, settle and reconcile) transactions effected by Merchants with Customers using Payment Instruments, including American Express, Discover, JCB, and Diners Club/Carte Blanche, (iii) check guarantee and electronic check acceptance services, and (iv) other related products and services, including point of sale terminal equipment and other electronic payments at the point of sale. Unless the context requires otherwise, such term includes related Merchant customer service, chargeback and retrieval processing, point of sale hardware deployment and service, interchange settlement and risk management (including new Merchant application approval). Such term does not include any Payment Instrument issuing or related activities or services, or sponsoring the aforementioned types of Payment Instrument transactions. Confidential Information. Confidential Information means all proprietary, secret or confidential knowledge, data or information of a party. By way of illustration but not limitation, Confidential Information includes all or any of the following: software, data relating to either party and their operations, employees, products or services, clients, customers or potential customers (including those Merchants referred by Affiliate under the terms of this Agreement), and includes the Signed Merchant pricing and marketing plans related to the Fattmerchant s Card Processing Services, as well as the terms of this Agreement. Customer. Customer means the person or entity to whom a Payment Instrument is issued or who is otherwise authorized to use a Payment Instrument. MasterCard. MasterCard means MasterCard Worldwide, Incorporated or its successors or assigns. Merchant. Merchant means a person or entity that has the right to acquire or otherwise accepts Payment Instruments as payment for goods, services or otherwise. Merchant Agreement. Merchant Agreement shall mean Fattmerchant and/or its Acquirer s agreement with a Signed Merchant for providing Payment Processing Services. Payment Brand. Payment Brand means Visa, MasterCard and any other association, payment brand, Payment Instrument issuer, debit network or payment methodology or system having proprietary rights to and clearing and oversight responsibilities with respect to any Payment Instrument used to effect payment- related transactions for which any Payment Processing Services are provided pursuant to this Agreement. Payment Instrument. Payment Instrument is a payment card, an account, or evidence of an account, authorized and established between a

7 Customer and a Payment Brand and accepted by Merchants from Customers as payment for a good or service. Payment Instruments include, but are not limited to, credit and debit cards, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates and credit accounts. Signed Merchant. Signed Merchant means a Merchant referred by Affiliate to Fattmerchant hereunder which (i) executes a Merchant Agreement with Fattmerchant following the Effective Date, (ii) such Merchant Agreement is accepted by Fattmerchant and its Acquirer, (iii) processes at least $50 in Visa or MasterCard transactions, and (iv) has not been closed or deactivated. Visa. Visa means Visa U.S.A Inc. or Visa international or either of their successors