5 new Merchant subscriptions

Transcription

1 SALES REPRESENTATIVE AGREEMENT MERCHANTCIRCLE This Sales Representative Agreement (the Agreement ) is made by and between you as a sales representative organization ( Sales Representative ) and WYBS, Inc., a Delaware corporation, d/b/a MerchantCircle, with a principal place of business located at 201 Main Street, Suite 100, Los Altos, CA ( MerchantCircle ), and is effective upon clicking the I AGREE button and electronically signing this Agreement as discussed below (the Effective Date ). Sales Representative and MerchantCircle are individually referred to as a Party and collectively, referred to as the Parties. By clicking "I AGREE" and electronically signing this Agreement, Sales Representative acknowledges that it has read, accepted and agreed to be bound by the terms and conditions of this Agreement. If you do not agree to all of the terms of this Agreement, then click on the I DECLINE button. You will not be able to promote and solicit Orders (as defined below) for Services (as defined below) provided by MerchantCircle if you click on the I DECLINE button. 1. Appointment of Sales Representative. During the term of this Agreement, MerchantCircle grants to Sales Representative the non-exclusive right and appointment to promote and solicit Orders for services provided by MerchantCircle (the Services ) from merchants and business enterprises located within the limited territory established during this registration (the Territory ). The term Order(s) includes all initial and renewal registrations, subscriptions, and purchases of the Services. Sales Representative acknowledges and agrees that MerchantCircle is not obligated to provide any services to, or enter into any contract with, any Merchant (as defined below) solicited by Sales Representative. The Parties are and intend to remain independent contractors, and nothing in this Agreement shall create any agency, partnership, joint venture, agency, franchise, partnership, or employment relationship between the Parties. Sales Representative has no authority to make or accept any offers or representations or warranties on MerchantCircle s behalf and is not authorized to and shall not enter into any contractual relationships on behalf of MerchantCircle. Merchants and others ( Merchants ) who purchase Services from MerchantCircle shall be deemed customers of MerchantCircle, not Sales Representative, exclusively with respect to the Services. 2. Exclusivity and Reservation of Rights. The Parties acknowledge and agree that the appointment of Sales Representative within the Territory is exclusive insofar as MerchantCircle will appoint no other sales representatives for the Territory. MerchantCircle reserves the right to stop, limit or discontinue any Services, dictate and/or limit the type of Merchants solicited by the Sales Representative, the Territory in which the Sales Representative promotes the Services, and reserves the right to sell its Services outside the Territory directly or indirectly through other third parties without notice to Sales Representative. MerchantCircle shall be under no obligations to provide any Services for or enter into any Orders with any Merchants solicited by Sales Representative under this Agreement. MerchantCircle has no obligation to furnish leads or inquiries to Sales Representative, or qualify any leads MerchantCircle chooses to furnish. 3. Sales Representative Obligations. (a) Merchant-Related Responsibilities. Sales Representative shall diligently and continuously promote and solicit Orders for Services from existing or prospective Merchants located in the Territory. Sales Representative shall be solely responsible for the means, manner and methods of its performance under this Agreement. Sales Representative shall also assist Merchants in placing such Orders for Services to MerchantCircle for acceptance or rejection by MerchantCircle, which shall be at MerchantCircle s sole discretion. Sales Representative shall secure, on behalf of MerchantCircle, the Minimum Orders specified below. Such requirements for Minimum Orders shall be in effect the first day of the month following the day that Sales Representative agrees to the terms and conditions of this Agreement. Time Period Months 1 through 3 Each 3 Months Thereafter Minimum Order Volume No Minimum Order requirement 50 new Merchants registered 5 new Merchant subscriptions

2 (b) Sales Representative Representations & Covenants. Sales Representative represents to and covenants with MerchantCircle that it: (i) is a corporation, limited partnership, limited liability company or other recognized legal entity with limited liability, (ii) is duly incorporated or formed and organized, validly existing and in good standing under the laws of the state of its incorporation or formation, and qualified to do business where required by law; (ii) shall conduct business in compliance with all applicable laws, rules, regulations, and ordinances, and in a manner that reflects favorably at all times on MerchantCircle and the Services; (iii) shall not engage in deceptive, misleading or unethical practices that are or might be detrimental to MerchantCircle or the Services; (iv) shall make no false or misleading representations with regard to MerchantCircle or Services; (v) shall use only promotional materials approved by MerchantCircle for purposes of soliciting or promoting Services to existing or prospective Merchants in the Territory; (vi) shall not re-create, reproduce, publish, distribute, employ, or cooperate in the publication, distribution or employment of any advertising or promotional material with regard to MerchantCircle or the Services without the prior written approval of MerchantCircle, which shall be at MerchantCircle s sole discretion; (vii) shall not have any right or authority to and shall not make any representation or warranty on behalf of MerchantCircle, or in any manner assume or create any obligation or responsibility, express or implied, on behalf of or in the name of MerchantCircle, or act for or bind MerchantCircle in any respect; and (viii) shall pay any and all expenses incurred by Sales Representative in the performance of Sale Representative s duties under this Agreement. (c) Non-solicitation. During the term of this Agreement and for six (6) months after this Agreement expires without renewal or terminates, Sales Representative shall not attempt to induce or solicit, directly or indirectly, or encourage any other person to induce, directly or indirectly, (i) Merchants located in the Territory, (ii) Merchants solicited or serviced by Sales Representative, and (iii) National Accounts. (d) Non-compete. During the term of this Agreement and for six (6) months after this Agreement expires without renewal or terminates, Sales Representatives located outside of the State of California, shall not directly or indirectly, engage in selling services or offering for sale services that compete with the Services offered by MerchantCircle. (e) Non-Disparagement. Sales Representative covenants to refrain from publishing any and all disparaging statements relating to MerchantCircle, its services, personnel, goods, and/or manner of doing business. (f) Remedies. Sales Representative understands that these covenants of non-solicitation, non-competition (if applicable) and non-disparagement are a material inducement for MerchantCircle to select Sales Representative and that, for the breach thereof MerchantCircle will be entitled to pursue its legal and equitable remedies, including, without limitation, the right to obtain injunctive relief without posting of any bond or security and monetary relief. 4. Orders and Billing. (a) Acceptance. No Order received by any Sales Representative for Services shall be considered binding unless and until accepted by MerchantCircle through its online signup process. Sales Representative shall not be a third party beneficiary to any agreements between MerchantCircle and Merchants. (b) Contracts with Merchants. MerchantCircle shall provide Sales Representative with access to its online signup process which allows Sales Representative to assist the Merchants with registering or subscribing to the Services. MerchantCircle reserves the right to modify or change its Services, prices, price lists, discount rates, methods of payment and any other matters relating to the Services without prior notice to Sales Representative and without incurring any liability to Sales Representative. All business records maintained by Sales Representative relating to MerchantCircle, Merchants, or any Orders are subject to inspection and copying at any reasonable time by MerchantCircle authorized representatives. (c) Payment. MerchantCircle shall invoice Merchants directly for any and all Orders placed with MerchantCircle pursuant to this Agreement. Merchants shall make all payments directly to MerchantCircle. Sales Representative shall immediately forward to MerchantCircle any Merchant payments received by Sales Representative without cashing any check or deducting any Sales Commissions. 5. Sales Representative Compensation. (a) Sales Commissions. Sales Representative shall only be eligible for compensation based on Orders for the Services which are (i) attributed solely to Sales Representative, (ii) received and accepted by MerchantCircle, and (iii) from which MerchantCircle has actually collected payment from the Merchant. Sales Commissions shall be paid on a monthly basis for fees actually collected by MerchantCircle and under the terms of the Sales Commissions schedule located on Exhibit A.

3 Such Sales Commissions may be modified by MerchantCircle unilaterally upon thirty (30) days prior written notice to Sales Representative. Any such change will be transmitted in the form of a revised Exhibit A, which will be deemed an amendment to this Agreement and will not require Sales Representative s signature. (b) Payment of Sales Commissions. In calculating Sales Commissions, MerchantCircle shall deduct any fees refunded to a Merchant from the next monthly payment due Sales Representative for the Orders that generated such Sales Commissions. If there is no subsequent payment due, MerchantCircle shall send an invoice for the remaining Sales Commissions paid to Sales Representative and Sales Representative shall pay such amount within thirty (30) days after receipt of such invoice. In no event shall MerchantCircle be liable for payment to more than one sales representative for Orders placed by the same Merchant. Should more than one sales representative claim any right to a payment, hereunder or otherwise, a single payment may be apportioned among the claimants as determined by MerchantCircle in MerchantCircle s sole discretion. Organizations and individuals having a claim in each transaction will, if practical, be consulted before any dispute is settled. Such amounts shall be placed in a separate account and shall be used only for payment of expenses incurred by MerchantCircle for the resolution of such disputes. MerchantCircle may deduct from such amounts the sum of all amounts paid or incurred by MerchantCircle to resolve the dispute, including all attorneys fees, accounting fees and related costs. Notwithstanding anything to the contrary in this Agreement, the determination of MerchantCircle with respect to the application of applicable payments due hereunder shall be final and binding on Sales Representative and Sales Representative waives all legal and equitable rights to contest such determination. (c) Territory Management. (i) MerchantCircle has the right to establish, alter, or create guidelines that relate to management of the Territory, Orders placed by Sales Representatives for Merchants located outside of the Territory, and Orders placed by other sales representatives with Merchants located inside the Territory. Sales Representative agrees to abide by any guidelines established by MerchantCircle regarding territory management. If Sales Representative secures an Order from a Merchant outside of the designated Territory, MerchantCircle may, in its sole discretion, decline the Order, replace the Order with an Order for another sales representative, or reallocate the payment of Sales Commissions for such Order among sales representatives. If MerchantCircle approves the Order, then Sales Representative shall be paid Sales Commissions for one (1) month. After the one (1) month time period, then MerchantCircle may allocate any further commissions on such Order to the appropriate sales representative covering the territory in which the Merchant is located. (ii) MerchantCircle may unilaterally reduce or enlarge the size of the Territory at any time on 30 days prior written notice to Sales Representative to promote efficient and effective market penetration by its network of sales representatives. (d) National Accounts Program. Notwithstanding any provision of this Agreement to the contrary, MerchantCircle may establish a National Accounts Program to engage in the offer and sale of Services to multi-location Merchants. The rules and policies of the National Account Program may provide for commission sharing and mandatory servicing obligations that allocate commissions and service responsibilities between the sales representative or MerchantCircle employee who solicits the Merchant s home, group, regional or zone office and each Sales Representative whose territory includes at least one Merchant location. Sales Representative acknowledges that the National Accounts Program and team sales approach are material to MerchantCircle and agrees to cooperate and comply with the National Accounts Program. Sales Representative acknowledges and agrees the MerchantCircle may designate the headquarters or major operational office of a National Account Merchant as excluded from the Territory if Sales Representative has not caused such Merchant to place any Order, or has cancelled or not renewed any Order, and appoint another person to solicit such National Account. 6. Confidential Information. For the purposes of this Agreement, "Confidential Information" means any information which the Party disclosing the information (the "Discloser") designates as confidential or which should from the context of disclosure be considered confidential, or which the Party receiving the information (the "Receiver") knows or has reason to know is confidential to the Discloser. Confidential Information shall include, without limitation, training and educational materials, names and addresses of any Merchants, and any other information relating to Merchants or MerchantCircle s business or Services. Confidential Information does not include information which is: (a) already known by the Receiver at time of disclosure; (b) is or becomes, through no act or fault of Receiver, publicly known; (c) received by Receiver from a third party without a restriction on disclosure or use; (d) independently developed by Receiver without reference to Discloser's Confidential

4 Information; or (e) required to be disclosed by a court or governmental agency pursuant to a statute, regulation or process, subpoena or order. During and after the term of this Agreement, the Receiver shall hold the Discloser's Confidential Information in confidence and shall not disclose the Discloser's Confidential Information to third parties nor use the Discloser's Confidential Information for any purpose other than as permitted in this Agreement. Each Party shall promptly notify the other Party of any actual or suspected misuse or unauthorized disclosure of its Confidential Information. 7. Indemnification. Sales Representative acknowledges and agrees that MerchantCircle shall have no obligation (e.g., for payment of Sales Commissions or other compensation or fees) to Sales Representative other than as expressly set forth herein. Sales Representative shall indemnify, defend, and hold MerchantCircle harmless from and against any costs, claims, losses, liabilities, damages, expenses, and fees (including reasonable attorneys fees) arising from or relating to any acts or omissions of Sales Representative or the breach of any provision of this Agreement by Sales Representative or Sales Representative s misrepresentation, fraud or negligence with respect to any of the Services or any Order. Sales Representative shall obtain and maintain during the term of this Agreement a commercial general liability policy having a combined single limit per occurrence of not less than $1,000,000, that names MerchantCircle as an additional insured and provides for at least 30 days notice of termination, cancellation or non-renewal to the insured and all additional insureds. Sales Representative shall provide MerchantCircle with an insurance certificate to demonstrate compliance at least annually prior to the policy renewal date. 8. Proprietary Rights. (a) Use During Agreement. Sales Representative is not authorized to use any trademarks, trade names, logos, service marks, designations, and other similar means of distinction used by MerchantCircle for Services (collectively, the Marks ) without the prior, written permission of MerchantCircle. Sales Representative may use the Marks only in the manner and for the purposes authorized by MerchantCircle. (b) No Transfer of Rights. Sales Representative acknowledges that MerchantCircle owns and retains all right, title, and interest in the Marks, copyrights and other proprietary rights in or associated with all Services, documentation, and materials, including all goodwill pertaining thereto, and Sales Representative shall not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity or enforceability of any Marks, copyrights or proprietary rights belonging to or licensed to MerchantCircle. All goodwill associated with the MerchantCircle business inures to the benefit of MerchantCircle, and this Agreement and the relationship between Sales Representative and MerchantCircle creates no goodwill or proprietary rights for Sales Representative. Any customer or prospect list of Merchants recruited or identified by Sales Representative for MerchantCircle under this Agreement shall be the sole and exclusive property of MerchantCircle. (c) Obligation to Protect. Sales Representative agrees to use reasonable efforts to cooperate with MerchantCircle's efforts to protect its proprietary rights. Sales Representative agrees that Sales Representative shall not, and shall not cause or assist any third party, to register any of the Marks. Sales Representative agrees to notify MerchantCircle of any known or suspected infringement or misappropriation of MerchantCircle's proprietary rights that comes to Sales Representative's attention. 9. Term and Termination. (a) Term. This Agreement shall commence on the Effective Date and shall remain in effect until terminated by either Party upon thirty (30) days written notice to the other Party. MerchantCircle may also terminate this Agreement at any time immediately for material breach by Sales Representative of this Agreement and such termination shall be effective immediately upon notice to Sales Representative. (b) Effect of Termination. Upon termination of this Agreement, all of the rights granted to Sales Representative hereunder shall terminate immediately and Sales Representative shall cease all activities contemplated under this Agreement. Sales Representative shall immediately return all MerchantCircle materials and all MerchantCircle Confidential Information, and certify through an officer of Sales Representative such return of all materials provided to Sales Representative hereunder. Sections 1 (Appointment of Sales Representative), 3 (Sales Representative Obligations), 4 (Orders and Billing), 6

5 (Confidential Information), 7 (Indemnification), 8 (Proprietary Rights), this Section 9 (Term and Termination), 10 (Disclaimer of Warranties and Limitation of Liability), 11 (Remedies), and 12 (General) shall survive the termination of this Agreement. (c) Payments After Termination. Sales Representative is eligible to earn Sales Commissions only in connection with the Orders attributed to Sales Representative placed with MerchantCircle during the term of this Agreement. Sales Commissions earned through the date of termination shall remain payable only if the related Orders are not cancelled and/or discontinued and/or any refunds exceed said Sales Commissions. No Sales Commissions shall be due for any Orders for Services if this Agreement is terminated before such Order is accepted. 10. Disclaimer of Warranties and Limitation of Liability. (a) Disclaimer of Warranties. THE SERVICES ARE PROVIDED AS IS AND MERCHANTCIRCLE MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THIS AGREEMENT AND/OR THE SERVICES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON- INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. (b) Limitation of Liability. IN NO EVENT SHALL MERCHANTCIRCLE, OR MERCHANTCIRCLE S OFFICERS, DIRECTORS, EMPLOYEES, OR REPRESENTATIVES BE LIABLE TO THE SALES REPRESENTATIVE OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY FORM OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT AND BREACH OF WARRANTY, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. 11. Remedies. In the event of any breach of Sections 3(b) (Sales Representative Covenants), 6 (Confidential Information), 8 (Proprietary Rights), and 9(b) (Effect of Termination), the resulting injuries to MerchantCircle cannot be estimated, but the Parties agree that irreparable injury or damages will result to the business of MerchantCircle. Sales Representative therefore agrees that, in the event of any such breach, MerchantCircle shall be entitled, in addition to any available legal or equitable remedies for damages, to seek and obtain without posting any bond or security an injunction to enforce the terms thereof and restrain the violation or anticipated violation thereof. MerchantCircle s rights under this Section shall be in addition to every other remedy (equitable, statutory, legal or contractual) to which it may be entitled. 12. General. (a) Integration/Amendment. This Agreement constitutes the final, complete and exclusive statement of the agreement between the Parties in respect of the subject matter hereof and supersedes and replaces all prior and contemporaneous agreements, discussions, and proposals between the Parties in respect of the subject matter. This Agreement may be amended only by a subsequent writing, signed by the Parties, except for MerchantCircle s rights to amend the Territories, Sales Commissions, Minimum Order requirements and operate a National Accounts Program as set forth above. (b) Non-Assignment. Sales Representative has been selected on the basis of an interview, its experience and personal skills. Sales Representative may not assign or transfer this Agreement or any of its rights hereunder without the prior written consent of MerchantCircle. (c) No Waiver, Severability, Headings. Any failure by either Party to detect, protest, or remedy any breach of this Agreement shall not constitute a waiver or impairment of any such term or condition, or the right of such Party at any time to avail itself of such remedies as it may have for any breach or breaches of such term or condition. A waiver may only occur pursuant to the prior written express permission of an authorized officer of the other Party. If any provision hereof is declared invalid or un-enforceable by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall continue in full force and effect. Headings used in this Agreement are for convenience only and shall not be considered in construing or interpreting this Agreement. (d) Notices. All notices required under this Agreement to be in writing shall be given in writing and shall be delivered either by hand, by personal delivery, U.S. first class mail or electronic mail, fees pre-paid by sender, or by facsimile (with confirmation copy sent by certified mail) addressed to the receiving Party at the address set forth herein, or at such other

6 address as may be designated from time to time. Any such notice shall be deemed delivered upon the earlier of actual receipt or three (3) days after deposit of such notice. (e) Governing Law/Venue/Attorneys Fees. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without giving effect to its conflict of laws principles. Any and all claims arising from this Agreement shall be brought in courts located in San Mateo County, California. Both Parties to this Agreement consent to the non-exclusive personal jurisdiction of such courts. The prevailing Party in any litigation relating to this Agreement shall be reimbursed by the non-prevailing party for its reasonable and necessary attorneys fees and costs of enforcement.

7 EXHIBIT A SERVICES AND COMMISSION SCHEDULE Sales Representative shall offer on behalf of MerchantCircle the following Services to Merchants in the Territory at the following prices: Option 1 No startup cost $99 monthly subscription Option 2 $199 startup cost (one-time cost when the Merchant becomes a paying subscriber) $149 monthly subscription Option 3 $199 startup cost (one-time cost when the Merchant becomes a paying subscriber) $299 monthly subscription For the subscriber packages, MerchantCircle shall pay and the Sales Representative will earn different commissions for each Commission Period listed below as long as the Merchant remains a subscriber for Services. If a Merchant cancels or terminates a subscription and reinstates the subscription within one year after the cancellation becomes effective, then commissions shall resume as if there were no break in Services for the purposes of determining the applicable Commission Period. A Merchant with multiple locations shall be deemed to be a [single Subscriber for all locations] [a separate Subscriber for each location] The commissions are: Commission Period Monthly Commission Per Merchant Subscriber Option 1 Months 1-6 $30 Months 7-12 $25 Months 13+ $20 Option 2 Startup Commission $40 (one time only) Months 1-6 $40 Months 7-12 $35 Months 13+ $30 Option 3 Startup Commission $40 (one time only) Months 1-6 $50 Months 7-12 $45 Months 13+ $40 Other commission payments: 1) If a Sales Representative signs a Merchant for Verified Member status ($2.99 per month paid in one annual payment of $35.88) before the Merchant becomes a subscriber, then Sales Representative will receive a $5 commission one time. This commission will be paid for each Verified Member package that does not qualify for one of the three Options above.

8 2) If a Sales Representative signs up 100 new Merchants in the Territory, the Sales Representative will receive a $400 one time bonus. This commission will be paid for each group of 100 new Merchants who have never been MerchantCircle members. Commissions will be paid monthly in arrears for the prior calendar month's performance.