MARKETING AND REFERRAL AGREEMENT
THIS AGREEMENT is entered into as of (date form completed and this agreement was acknowledged online), between First Choice Payment Solutions, G.P. (d/b/a Sekure Merchant Solutions), a Canadian general partnership with its principal place of business at 200-3 Place Ville MarieMontréal, QC H3B 2E3 (“SMS”), and (legal name used on registration form), an outside sales partner, with its principal office located at (mailing address used on the registration form). (“Affiliate”).
RECITALS: SMS helps merchants and others (“Subscribers”) establish a merchant account, and obtain point of sale software and terminal equipment, all to enable them to accept credit and debit cards, and as well to receive other merchant related services and products (collectively, the “SMS Program”). Affiliate works with Subscribers in the course of its business that would benefit from having access to the SMS Program. Accordingly, Affiliate desires to market the SMS Program as part of its own programs and services, and to refer Subscribers to SMS for application to the SMS Program. In return, SMS desires, subject to the terms set forth herein, that Affiliate be (i) authorized to market the SMS Program, and (ii) compensated for such referrals.
NOW THEREFORE, for good and valuable consideration, and the mutual promises contained herein, the parties hereto agree as follows:
Article 1. Grant of Right to Market:
1.1 SMS hereby grants to Affiliate the non-exclusive right and authority to market the SMS Program, in conjunction with its programs and services. Affiliate hereby agrees to market actively the SMS Program as part of its own programs and services, and refer Subscribers to SMS for application to the SMS Program Affiliate will conduct these marketing activities pursuant to, and will at all times abide by, the recommendations, rules, guidelines, directives and policies (collectively, the “Rules”) of SMS, its vendors, and Visa U.S.A., Inc., MasterCard International Inc., DFS Services Inc., American Express Travel Related Services Company, Inc., and all other applicable credit and debit card associations and networks (collectively, the “Associations”), all as amended from time to time. Rules may be found at usa.visa.com; www.mastercard.us; www.americanexpress.com and www.discovernetwork.com. Affiliate will also adhere to all applicable laws, rules and regulations, including but not limited to laws relating to the solicitation of Subscribers.
1.2 In the absence of SMS’ prior written authorization, Affiliate will not, directly or indirectly through any other person or entity, market any program, or solicit or encourage any Subscribers to join or apply for admission into any program, that competes with the SMS Program - it being the intent of this Agreement that Affiliate will refer Subscribers solely to SMS on an exclusive basis.
1.3 Affiliate will install and host product/services information relating to SMS Program on its website, in accordance with the Rules. Affiliate will, as directed by SMS, refer Subscribers to a Web link or toll free telephone number offered by SMS in order to enable Subscribers to complete and submit merchant applications to SMS.
Article 2. SMS Assistance. SMS agrees that it will provide Affiliate, at SMS' sole cost and expense, with such training materials, sales materials, banners, and other supplemental materials as deemed necessary by SMS for Affiliate to market the SMS Program. Affiliate will only use materials approved by SMS in advance and in writing in marketing the SMS Program. Affiliate acknowledges that all such materials are owned exclusively by SMS, and delivered to Affiliate solely in furtherance of this Agreement.
Article 3. Acceptance/Rejection of Subscribers. Subscribers referred by Affiliate will be considered an offer from a prospective customer, subject to SMS’ acceptance or rejection. SMS may accept or reject any Subscriber, and such decision will be in the sole discretion of SMS. A Subscriber referred by Affiliate will be deemed to have been accepted by SMS (an “Accepted Subscriber”) at such time as it has entered into a Merchant Agreement with SMS, and SMS has been paid all installation and set-up fees and charges due it. For purposes hereof, a Merchant Agreement shall be in the form annexed hereto as Exhibit A and as may be updated from time to time. The relationship created between an Accepted Subscriber and SMS in accordance with a merchant agreement, or any other agreement between SMS and an Accepted Subscriber, will be owned exclusively by SMS, and Affiliate will have no right, title or interest in and to such merchant agreement or other agreement. Affiliate will not be involved or have any interest in any transaction, authorization, settlement or funds transfer process between or among Accepted Subscribers, cardholders, SMS, the Associations, any merchant acquirers, processing vendors, or card issuers. Affiliate will not directly or indirectly enter into any agreements or arrangements with Accepted Subscribers relating to the SMS Program. Notwithstanding the foregoing, Affiliate may offer to Accepted Subscribers other services or products which are (i) not offered by SMS, and (ii) not related to the SMS Program.
Article 4. Compensation.
4.1 Affiliate will be entitled to receive compensation for each Accepted Subscriber it has referred to SMS. The nature of such compensation, and manner of its computation and payment, is established in Exhibit B attached hereto. No compensation will be earned by Affiliate for any Subscriber whose application is rejected by SMS, or who has participated in the SMS Program at any time during the prior twelve months.
4.2 Affiliate will not be responsible or liable for the performance, payment obligation, liability, fraud or breach by any Accepted Subscriber under its respective merchant agreement. All losses incurred by SMS attributable to Accepted Subscribers, including but not limited to fraud, chargebacks and non-payment of fees, will be borne by SMS; provided, however, that Affiliate will be obligated to return compensation received by it on account of (i) any transaction that becomes the subject of a chargeback, (ii) any fees, expenses or charges that are refunded by SMS to an Accepted Subscriber for any reason, and (iii) any fees, expenses or charges that are rejected or not collected for any reason.
4.3 If Affiliate disputes any compensation paid to it under this Agreement, Affiliate must inform SMS within 90 days of the date that Affiliate actually becomes aware or should have reasonably become aware of the error or issue forming the basis of such dispute. Affiliate waives any claim against SMS regarding any compensation under this Agreement that Affiliate fails to dispute within such 90-day period.
4.4 Notwithstanding anything to the contrary contained in this Agreement, SMS shall not be obligated to compensate Affiliate for any month after the expiration of the first (1st) anniversary of this Agreement, whether prior to or after the termination of this Agreement, in which Affiliate’s earnings from this Agreement fall below $250.
Article 5. Term and Events of Default.
5.1 This Agreement will continue in full force and effect for a period of one (1) year from the date set forth above. Upon the expiration of such term, this Agreement will be renewed for subsequent one (1) year terms, unless either SMS or Affiliate provides written notice to the other no later than ninety (90) days prior to the expiration of the then current term of its intent not to renew, whereupon this Agreement will terminate.
5.2 If a party breaches or fails to perform its obligations under this Agreement, then the non-breaching party will have the right to terminate this Agreement, upon thirty (30) days' written notice to the breaching party; provided, however, that if such breach or default is cured within such thirty (30) day period, the Agreement will continue.
5.3 This Agreement will terminate immediately without notice in the event that Affiliate files a petition under the United States Bankruptcy Code or the Canadian Bankruptcy and Insolvency Act or the Canadian Companies Creditors and Arrangements Act, or any involuntary petition is filed against Affiliate, or if a receiver or trustee is appointed for Affiliate or Affiliate’s assets.
5.4 If a party (a) knowingly engages in activities which violate the Rules, or which cause the other party to violate the Rules, (b) operates in an unsafe, unsound manner, or commits fraud or suffers a material adverse change, financial or otherwise, or (c) engages in activities which result in undue economic hardship and/or damage to the goodwill of the other party, then it will be deemed to be in breach of this Agreement, and the non-breaching party may terminate the Agreement immediately upon providing written notice to the breaching party.
5.5 Notwithstanding the foregoing, if any Association prohibits SMS or Affiliate from providing the Services required by this Agreement, then this Agreement will automatically terminate as to products and services offered by or through such Association as of the effective date of such prohibition.
5.6 Upon the occurrence of an event under Sections 5.2 (and the expiration of the applicable cure period) or 5.4, the non-breaching party will have the right, in addition to terminating this Agreement, to suspend its performance under this Agreement in whole or in part upon written notice, and/or pursue all other remedies available at law or in equity which the non-breaching party may elect to pursue, either successively or concurrently, all such remedies being cumulative. Such remedies include, without limitation, the right of the non-breaching party to offset damages incurred by it by reason of such breach against compensation or other amounts owed by it to the breaching party.
5.7 Subject to its rights under Section 5.6 above, and provided that SMS has not terminated this Agreement due to Affiliate’s breach of Section 5.4, SMS will continue to pay to Affiliate the compensation specified in Section 4 hereof after the termination of this Agreement for so long as SMS continues to receive fees from Accepted Subscribers.
Article 6. Independent Contractor Relationship. Affiliate is, and will at all times be, an independent contractor with respect to the subject matter of this Agreement, and agrees that it will at all times hold itself out as an independent contractor. Affiliate is not an agent, employee, partner or joint venturer of SMS, and has no authority to bind SMS under any circumstances. Affiliate will not have the right to receive any benefits from SMS, including, without limitation, the right to participate in any pension, profit sharing, stock option, executive compensation, health, insurance, or any other employee benefit plan of SMS, now or hereafter existing. Affiliate will assume full responsibility for the payment of all federal, provincial, state and local taxes or contributions imposed or required under employment insurance, social security, workers' compensation, and income tax laws arising by reason of the performance of Affiliate’s duties.
Article 7. Indemnification.
Each party (an “Indemnifying Party”) hereby agrees to indemnify and hold the other party harmless from any and all claims, damages, liabilities, and expenses, including attorneys’ fees and litigation costs, arising from the performance or nonperformance of the Indemnifying Party’s obligations under this Agreement including, but not limited to, any negligence of the Indemnifying Party or any alleged or actual violations by the Indemnifying Party (or its subcontractors, agents, representatives or employees) of any governmental laws, regulations or rules. Each party agrees, however, that an Indemnifying Party’s indemnity does not extend to any unpaid charge or loss to the extent due to fraud by someone other than the Indemnifying Party (or such party’s agent or representative) in connection with the SMS Program.
Article 8. Confidentiality; Non-Solicitation.
8.1 Each party (a “Receiving Party”) acknowledges that, during the course of its performance under the terms of this Agreement, it may gain possession or knowledge of confidential, proprietary and/or trade secret information of the other party (a “Disclosing Party”). A Receiving Party recognizes that such information constitutes a valuable asset of the Disclosing Party, and agrees that it will not disclose any such information to any third person, and that it will not use such information except to perform services under this Agreement. Affiliate acknowledges and agrees that it will not disclose to any other person or entity (i) the existence of or details regarding the relationship between SMS and any Accepted Subscriber under this Agreement, or (ii) any information relating to the services and/or products provided by SMS to each such Accepted Subscriber. Any information obtained from Accepted Subscribers in respect of or under the SMS Program will, as between SMS and Affiliate, constitute confidential, proprietary and trade secret information of SMS. Each party recognizes that a breach of this Article 8 will cause irreparable harm to the other party and that, therefore, such other party will be entitled to injunctive relief in addition to such other remedies as may be available, without the necessity of depositing security into the court.
8.2 Save with respect to the documentation referred to in Articles 2 and 9 hereof, the obligations imposed upon any party under Section 8.1 will not apply to information: (a) which becomes available to the public through no wrongful act of the Receiving Party or any other person; (b) which is publicly published prior to the date hereof by the Disclosing Party; (c) which is already in the possession of the Receiving Party (as shown by the Receiving Party’s files and records immediately prior to the time of disclosure) and not subject to an existing agreement of confidence between the parties; (d) which is received from a third party without restriction and without breach of this Agreement or any other agreement of confidence; (e) which is independently developed by the Receiving Party (without use of information provided hereunder and as shown by documents and other competent evidence in the receiving party’s possession); or (f) which is disclosed pursuant to a requirement of a court of competent jurisdiction.
8.3 Upon termination of this Agreement, Affiliate will return to SMS all information, data, forms, discs, and materials provided by SMS or at SMS’ direction.
8.4 In the territory consisting of the United States of America and its territories and possessions, Affiliate will not, directly or indirectly, through any agent or representative, on behalf of itself or any other person or entity, in any capacity whatsoever, without the prior written consent of SMS, (i) cause or induce any Accepted Subscriber to do business with any competitor of SMS, or to cease doing business with, reduce business with, or divert business from SMS, or (ii) in any way interfere with the relationship between any Accepted Subscriber, on the one hand, and SMS, on the other hand, or attempt to do any of the foregoing. For each violation of the prohibitions set forth in this subsection, SMS will have the right to collect a default fee from Affiliate equal to the greater of (i) $500, or (ii) the product of (x) 24, and (y) the average monthly, gross revenue (before the payment of compensation to Affiliate) received by SMS from the Accepted Subscriber’s processing activity over the three most recent months in which the Accepted Subscriber actively processed with SMS and/or its processing vendor.
8.5 The obligations of Affiliate under this Article 8 will subsist during the term or any renewal of this Agreement and for a period of one (1) year following termination.
Article 9. Names and Trademarks
9.1 Each party (“TM Requesting Party”) will not use the name or trademarks of the other party (“TM Owner Party”) in any promotional, marketing or other materials without the TM Owner Party’s prior written consent. A party’s written consent required under this paragraph will not be unreasonably withheld.
9.2. Each party is the owner of its trademarks and service marks (with respect to each party, the “Marks”) which identify various products and services which are provided by such party. Substantial goodwill has been, and will be, developed by each TM Owner Party with respect to its own Marks. In the event a TM Owner Party grants the other party written permission to use the TM Owner Party’s Marks, such use shall be a limited, non-transferable and terminable right to use such identified Marks solely for the purposes set forth in this Agreement or as otherwise permitted in writing. At any time in either party’s sole discretion, or upon any termination of this Agreement, each party’s right to use the Marks of the other party shall terminate. Each party’s right, title and interest in the Marks shall remain the sole property of such party at all times.
9.3. Affiliate acknowledges that each Association is owner of its respective names, trademarks, and servicemarks; that Affiliate will not contest the ownership of such names or marks; and that Affiliate will not use any such names or marks on its own behalf. Affiliate may use one or more Association names or marks only in accordance with the Rules and the express prior written instructions of SMS. Affiliate will not acquire any right, title or interest in any names or marks of any Association, and will take no actions which will diminish or damage the value or rights of any such names or marks.
Article 10. Limitation on Liability and Damages. In no event shall SMS be liable for any special, incidental, consequential or punitive damages of any nature or for any reason, regardless of the form of action, whether in contract, tort, extra-contractual or otherwise. The total cumulative liability of SMS in the aggregate for damages arising from any breach of this Agreement shall not exceed an amount equal to the lesser of: (a) fees derived by SMS under this Agreement if the Agreement has been in effect for fewer than 4 months, or (b) fees derived by SMS under this Agreement during the most recent 4 month period, measured from the date the liability accrues. The parties agree that the previous sentence shall not apply to a breach by SMS of SMS’ responsibility to pay Affiliate compensation under this Agreement.
Article 11. Notices. Any and all notices, requests, demands and other communications which are required or may be given under or in connection with this Agreement will be in writing and will be deemed given when delivered in person, or by electronic mail (provided such delivery is confirmed), addressed to the party to whom it is to be given at the address hereinafter specified:
If to SMS:
First Choice Payment Solutions, G.P.
200-3 Place Ville MarieMontréal, QC H3B 2E3
If to Affiliate:
Address used in form on the registration page
Email: Submitted on the registration page
The notices or communications provided in for herein shall be deemed to have been received the day they are sent, if delivered by hand or if transmitted by electronic mail during normal business hours: failing this, the telecopier or electronic mail transmission shall be deemed to have been received the next business day.
All notices must specify the delay in which a decision or an act must be made and must set forth all of the elements on which a decision or an act is to be made.
Article 12. Miscellaneous.
12.1 This is the entire Agreement between Affiliate and SMS with respect to the subject matter hereof, and supersedes any prior agreement, oral or written, between Affiliate and SMS. This Agreement may only be amended by a writing signed by the parties hereto.
12.2 SMS and Affiliate each agrees that any and all disputes or controversies of any nature whatsoever (whether in contract, extra-contractually, tort or otherwise) arising out of, relating to, or in connection with this Agreement, including but not limited to the validity, scope, interpretation or enforceability of the choice of law and venue provisions of this Agreement, will be (a) governed by the laws of Quebec and the Federal laws of Canada applicable therein, notwithstanding any conflicts of laws rules, (b) resolved on an individual basis without resort to any form of class action and not consolidated with the claims of any other persons, and (c) brought exclusively before the Superior Court of the district of Montreal, and each expressly agrees to the exclusive jurisdiction of such court. Nevertheless, SMS may bring action before the courts of any jurisdiction which it deems necessary to protect its intellectual property rights in virtue of this Agreement, Affiliate hereby knowingly, voluntarily and intelligently consents to personal jurisdiction in the foregoing courts with respect to any such legal action, suit or proceeding. Affiliate further irrevocably consents to the service of process of any of the above-referenced courts in any such legal action, suit or proceeding, by certified mail, postage prepaid, to Affiliate at the address set forth above. Affiliate hereby knowingly, voluntarily and intelligently waives any claim or defense in any such legal action, suit or proceeding commenced in any of the above-referenced courts asserting that Affiliate is not subject personally to the jurisdiction of such court, that service upon Affiliate as hereinabove set forth is invalid, that Affiliate’s property is immune or exempt from seizure, attachment or execution, that the legal action, suit or proceeding is brought in an inconvenient forum, that the venue of the legal action, suit or proceeding is improper or that this Agreement, or the subject matter hereof, may not be enforced in or by such court.
12.3 In the event that any action, suit or proceeding is brought under or in connection with this Agreement, the prevailing party therein will be entitled to its costs, expenses and reasonable attorneys’ fees.
12.4 If any provision of this Agreement is at any time adjudged invalid or unenforceable to any extent by any court of competent jurisdiction, such provision will be deemed modified to the extent necessary to render it valid and enforceable, and such invalidity or unenforceability will not affect any other provision of this Agreement.
12.5 This Agreement is not assignable or transferable, in whole or in part, by either party except upon the express prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided however, either party may assign this Agreement, without the other party’s consent, in connection with a merger, consolidation, sale of all or substantially all of its assets to another entity, to such third party to the merger, consolidation, or sale of assets. Any other attempt to assign or otherwise transfer this Agreement or any rights or obligations hereunder in violation of the foregoing shall be void.
12.6 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.
12.7 This Agreement may be executed in one or more counterparts, each of which will be deemed an original agreement, but all of which will be considered one instrument and will become a binding agreement when one or more counterparts have been signed by each of the parties and delivered to the other. A facsimile of this document bearing a party’s signature or a printed copy of the original, signed document scanned in .pdf or .tiff format will have the same legal force and effect as an original of such signature and will be treated as an original document for evidentiary purposes.
12.8 This Agreement is drafted in the English language at the request of both parties. Ce contrat est rédigé en langue anglaise à la demande des deux parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of the acknowledgement online.
FIRST CHOICE PAYMENT SOLUTIONS, G.P.:
Legal name, address, email and phone Information is submitted on the form and acknowledged by checking the box.