Terms and Conditions Agreement
This Terms and Conditions (“Agreement”) is made as of this day in 2018 (“Effective Date”) by and between First Choice Payment Solutions, G.P. (d/b/a Sekure Merchant Solutions), a Canadian general partnership (“SMS”), and, an (“Affiliate”).
- SMS is engaged in the business of providing financial transaction processing services to merchants;
- Affiliate desires to offer such services to its members/customers/clients.
- Therefore, in consideration of the mutual promises and the terms and conditions below, the parties agree as follows.
The following terms when used in this Agreement will have the meanings set forth in this Section:
“American Express” means American Express Travel Related Services Company, Inc.
“Credit Card” means a valid and unexpired card issued by, and bearing the symbols of, Visa or MasterCard. When appropriate, the term also includes valid and unexpired cards issued by American Express, Diners Club, Discover and JCB.
“Debit Card” means a valid automated teller machine (“ATM”) or similar card bearing the symbols of one or more of the ATM networks for which NAB processes transactions.
“Diners Club” means Citicorp Diners Club, Inc.
“Discover” means NOVUS Services, Inc.
“Event of Default” means any one or more of the events listed in Section 5.3.
“JCB” means Japanese Credit Bureau.
“MasterCard” means MasterCard International, Inc.
“Member” means a sole proprietorship, partnership, corporation or other business entity that is recognized by the Affiliate as a member of the Affiliate.
“Merchant” means a Member that has entered into a Merchant Agreement and to which NAB provides services under this Agreement.
“Merchant Agreement” means a written contract entered into between SMS and a Member, which authorizes the customer to participate in the Merchant Program.
“Merchant Program” means the package of services offered by SMS to acceptable merchants under this Agreement.
“Rules” means the written rules, regulations and procedures issued by Visa, MasterCard, ATM networks, American Express, Discover, JCB and Diners Club, as amended from time to time.
“Visa” means Visa U.S.A., Inc.
II. SMS Obligations
2.1 Marketing. SMS will work jointly with the Affiliate to: A) market the Merchant Program to Members; B) make information concerning the Merchant Program readily available to Members; and C) offer to Members other services provided by SMS.
2.2 Merchant Approval. SMS may accept or reject a Member as a Merchant based on criteria SMS deems prudent as part of its regular transaction processing program. Approval, review and pricing terms with respect to Merchants will be solely controlled by SMS. SMS may terminate any Member’s Merchant Agreement in accordance with the terms of such Agreement. Affiliate understands and agrees that Members will be permitted to participate in the Merchant Program only after: A) SMS’s approval of the Member’s merchant application; and B) execution by the Member and SMS of the Merchant Agreement.
2.3 Merchant Program. SMS will offer to provide to Merchants services substantially in the same manner as it does those merchants under SMS’s other merchant programs. The Merchant Program includes, but is not limited to, authorization, data capture, and settlement of Credit Card and Debit Card transactions.
2.4 Settlement. SMS (through a designated financial institution) will settle directly with each Merchant for all monies owed to Merchant pursuant to the Merchant Program.
2.5 Ongoing Responsibilities. SMS representatives will address Merchant inquires on matters related to Merchant training, chargeback procedures, equipment services and equipment repair, as appropriate.
2.6 Residuals. Each month SMS will remit to Affiliate the Residuals. The Residuals will be computed monthly as of the last day of each calendar month and will be paid within 45 days following the end of the month. At the time of each payment, SMS will deliver to Affiliate a statement detailing the computations used by SMS in arriving at the amount of the Residuals. SMS may amend Appendix A at any time.
III. Affiliate Obligations
3.1 Marketing. Affiliate will use its best efforts to market SMS’s Merchant Program to its Members, to make information concerning the Merchant Program readily available to its Members, and to encourage its Members to become Merchants of SMS. The Affiliate may produce its own materials for use in marketing SMS’s programs, but may not use such materials without obtaining SMS’s prior written consent. The current pricing schedules for Merchants shall be as described on Appendix (as Appendix A may be amended from time to time upon written notice by SMS).
Simplified Agent Program Marketing Guidelines
3.1.1 Websites approved for use in the Sekure Agent Program
In general, most blogs and websites will qualify for the Sekure Agent Program. However, we retain the right to refuse blog, website or Sekure Agent Program membership and can revoke your membership at any time, if we determine that your marketing materials, website, or social media accounts contains objectionable material. Your website and/or social media accounts must also be fully functional with original content and not appear as one of our business properties. Spam or scraper sites will not be approved. If your site is still in its development stage, please apply after it’s completed.
3.1.2. Discount and promo-type websites
We are not offering public discount codes for affiliates at this time. Should you operate a coupon or promo-type website, please be clear in the description section of the Affiliate Program Application as to how you intend to promote Sekure Agent Program.
3.1.3. Promoting the Sekure Agent Program with a website or social media
Agent Programs supporting Sekure Merchant Solutions sometimes use websites and social media. Do not create a website or social media account representing yourself as the business. Clearly indicate that you are an agent/partner and not the business.
3.1.4. PPC (Pay-Per-Click) advertising
Bidding or acquiring any of our trademarked terms, including any variations or misspellings thereof for search or content based campaigns on Google, MSN, Yahoo or any other network is prohibited.
3.1.5. The use of Sekure Merchant Solutions in a domain name
Any agent who intends to market the Sekure name, including but not limited to Sekure Merchant Solutions, in a top-level domain (e.g., www.Sekure-xxxx.com) must obtain written consent from Sekure Merchant Solutions prior to execution. In general, these trademark names cannot be used in domain names.
3.1.6. Using the Sekure name in URLs, ads or promotions
We encourage you to use our brand in your promotions on your site but require prior consent by Sekure Merchant Solutions for use of the name Sekure in Facebook, Twitter, Google+, Pinterest, Tumblr, Blogger or other social networking site URLs. You must identify yourself as an Agent / Partner and you can not pose as the business.
3.1.7. Promoting Agent links on Twitter with the hashtag #Sekure
While we encourage our affiliates to engage and participate in Sekure-related discussions using the Twitter hashtag #Sekure or a similar hashtag, spam links that include an obscured affiliate link are prohibited.
3.1.8. Simplified Agent Program Violations
Please contact us if you have a concern that you may be violating any of our guidelines. It is likely that we can find a way to work through this without any issue.Agents identified to be in violation of the Affiliate Program Guidelines will forfeit commissions on the specific transaction(s) in violation or all commissions assigned. Excessive violating party’s affiliate accounts will result in termination. Please contact us if you have any questions in order to work issues before they become excessive.
3.2 Exclusivity. Notwithstanding any provisions of this Agreement, Affiliate shall have the right to will refer Members to SMS on a non-exclusive basis. Provided however, that Affiliate shall not disparage SMS and/or SMS’s products or services, and Affiliate will not give preferential treatment to any other entity that provides Credit Card or Debit Card processing services similar to those provided by SMS under this Agreement.
3.3 Representations and Warranties of Affiliate. Affiliate represents and warrants to SMS that:
A. Affiliate is a corporation or limited liability company organized, validly existing and in good standing under the laws of its state of incorporation or organization and the laws of the state of its principal offices as set forth above (if different);
B. Affiliate has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement;
C. Affiliate’s performance of this Agreement will not violate any applicable law or regulation or any agreement to which Affiliate may now or hereafter be bound;
D. This Agreement represents a valid obligation of Affiliate and is fully enforceable against Affiliate according to its terms;
E. Affiliate will comply with the terms of this Agreement, with the Rules, and with all applicable state and federal laws, rules and regulations, and shall indemnify SMS for any fines, losses or liabilities incurred as a result of Affiliate’s failure to so comply;
F. Affiliate and its officers and directors are not a party to any pending litigation which could adversely affect Affiliate’s obligations hereunder, and Affiliate has never been fined or assessed penalties by Visa or MasterCard
4.1 Confidentiality. Affiliate and SMS each agree that it will not use for its own purposes, will not disclose to any third party, and will retain in strictest confidence all information and data belonging to or relating to the business of the other (including without limitation the terms of this Agreement and information related to Merchants, which the parties acknowledge belongs to SMS), and that each party will safeguard such information and data by using the same degree of care and discretion that it uses to protect its own confidential information. No party will be obligated to maintain the confidentiality of information to the extent it is required to reveal such information for the purpose of performing its obligations under this Agreement.
4.2 Remedy. In the event of a breach of this Article IV, the parties agree that the non-breaching party will suffer irreparable harm, and that the amount of monetary damages would be impossible to calculate. Thus, the non- breaching party will be entitled to injunctive relief in addition to any other rights to which the non-breaching party may be entitled, without the necessity of proof of actual damages.
V. Term and Termination
5.1 Term. This Agreement will become effective on the Effective Date, and will remain in effect for an initial term of 2 years (“Initial Term”). Either party may terminate this Agreement with or without cause at any time upon 30 days prior written notice to the other party.
5.2 Certain Post-Termination Rights. No termination of this Agreement will affect any right of SMS under any Merchant Agreement. All Residuals will cease upon termination of this Agreement.
VI. Names and Trademarks
6.1 SMS Name. Affiliate will not use SMS’s name or trademarks in any promotional or marketing materials, nor will Affiliate promote SMS’s programs in any way, without SMS’s prior written consent. Affiliate will obtain SMS’s written consent before Affiliate produces or distributes any materials relating to the Merchant Program. Affiliate acknowledges and agrees that it has no rights to use SMS’s trademarks and service marks without SMS’s prior written consent. SMS’s written consent required under this paragraph will not be unreasonably withheld.
VII. Indemnification and Limitation of Liability
7.1 Indemnification. Affiliate will indemnify, defend and hold SMS harmless from and against any and all claims, demands, losses (financial or otherwise), damages, liabilities, costs, fees, increased taxes or expenses (including without limitation, court costs and reasonable attorneys’ fees and expenses), which may be incurred or which may be claimed by any person or as a result of acts or omissions of Affiliate, its directors, officers, managers, owners, employees or agents relating to the exercise of, or the failure to exercise, Affiliate’s obligations under this Agreement.
7.2 Limitation of Liability. In no event shall either party be liable under this Agreement for consequential, special, exemplary, or any indirect damages for any reason whatsoever (including without limitation, lost profits, loss of records or data), regardless of whether arising from breach of contract, warranty, tort, strict liability, or otherwise, even if advised of the possibility of the loss or damage or if the loss or damage could have been reasonably foreseen. Any claim arising out of or relating to this Agreement must be brought within 1 year after the occurrence of the event giving rise to such claim.
8.1 Assignability. Affiliate will have no rights to assign this Agreement without the prior written consent of SMS and any unauthorized attempted assignment will be null and void. SMS may assign its rights under this Agreement.
8.2 Notice. All communications under this Agreement will be in writing and will be delivered in person or by mail courier, return receipt requested, addressed as indicated on the signature page of this Agreement. The parties may, from time to time, designate different persons or addresses to which subsequent communications will be sent by sending a notice of such designations in accordance with this Section.
8.3 Entire Understanding, Amendment. This Agreement, including the Appendix which is incorporated by reference, sets forth the entire understanding of the parties relating to its subject matter, and all other understandings, written or oral, are superseded. Except as otherwise provided in this Agreement, this Agreement may not be amended except in a writing executed by all parties.
8.4 Severability. If any provision of this Agreement is illegal, the invalidity of such provision will not affect any of the remaining provisions, and this Agreement will be construed as if the illegal provision is not contained in the Agreement. This Agreement will be deemed modified to the extent necessary to render enforceable the provisions hereunder, and to comply with the Rules.
8.5 No Waiver of Rights. No failure or delay on the part of any party in exercising any right under this
Agreement will operate as a waiver of that right, nor will any single or partial exercise of any right preclude any further exercise of that right.
8.6 Successors and Assigns. Subject to Section 8.1, this Agreement will inure to the benefit of and will be binding upon the parties and their respective permitted successors and assigns. This Agreement will not be deemed to be for the benefit of any third party.
8.7 Applicable Law. The laws of Quebec and the laws of Canada applicable in that Province, excluding any rule or principle of conflicts of law that may provide otherwise, govern this Agreement.
8.8 Independent Contractors. SMS and Affiliate will be deemed to be independent contractors and will not be considered to be agent, servant, joint venture or partner of the other.
8.9 Construction. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision. All sections mentioned in the Agreement reference section numbers of this Agreement. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against either party.
8.10 Force Majeure. Neither party will be liable to the other for any failure or delay in its performance of this Agreement in accordance with its terms if such failure or delay arises out of causes beyond the control and without the fault or negligence of such party.
8.11 Survival. All agreements that by their context are intended to survive the termination of this Agreement, including, but not limited to, the representations and warranties of Section 3.3, the confidentiality provisions of Article IV, the post-termination rights of Section 5.2, the liability and indemnification provisions of Article VII, the attorneys’ fee provision of Section 8.12, and the dispute resolution provision of Section 8.13, will survive termination of this Agreement.
8.12 Attorneys’ Fees. If any arbitration holds that a party has breached this Agreement, then the non-defaulting parties will be entitled to recover from the breaching party expenses incurred in enforcing the provisions of this Agreement, including reasonable attorneys’ fees and costs.
8.13 Dispute Resolution. Any dispute or claim arising out of, or in connection with this Agreement will be settled by final and binding arbitration to be held in Montreal, Canada in accordance with the commercial rules of the Canadian Arbitration Association (“CAA”). Judgment upon award rendered by the arbitrators may be entered in any court having jurisdiction over: A) the award; B) the party against whom enforcement is sought; or C) that party’s assets. The procedures and law applicable during the arbitration will be both the CAA rules and the internal substantive laws of Canada (excluding any rules regarding conflicts of law). In such arbitration, the award of decision will be rendered by at least a majority of the members of an arbitration panel consisting of 3 members, one of whom will be appointed by each of the parties hereto and the third appointed by the 2 so- appointed arbitrators. All arbitrators will be persons who are not employees or agents of any party. In the event that any party fails to appoint an arbitrator within 30 days after submission of the dispute to arbitration, such arbitrator will be appointed by the CAA.