Exhibit 10.8
[LOGO]
Non-Exclusive, Non-Registered AGENT AGREEMENT
This Agreement ("Agreement") is between Cardservice International, Inc., a
California corporation ("Cardservice") and __________________________ (legal
name), a ___________________ (State) [corporation/partnership/sole
proprietorship/limited liability company], dba _____________ ("Agent").
Cardservice is an Independent Sales Organization and Member Service Provider as
defined by the Association Rules and Regulations. Cardservice is engaged in the
business of providing Services.
Cardservice has its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000.
Agent is a person or entity in the business of soliciting purchasers of
Services.
Agent has its principal place of business at __________________________________.
Cardservice and Agent wish to enter into a relationship in which Agent will
represent Cardservice with respect to soliciting purchasers of Services provided
by Cardservice on the terms and conditions contained in this Agreement.
In consideration of the foregoing and the covenants and conditions contained
herein, Agent and Cardservice agree as follows:
1. Agent Obligations
1.1. Required Training. Prior to representing Cardservice or soliciting any
Prospective Merchant, Agent shall attend an agent training program, to
be held at Cardservice's corporate offices in Moorpark, California, or
such other place as Cardservice may designate from time to time.
Cardservice shall advise Agent in advance of the fee, if any, for said
training program. Any fee paid shall be credited to the Agent's account
and initial purchases of terminals, printers, PIN pads and forms will
be debited from such amount until such credit, if any, is depleted. The
training requirement shall apply only to those Agents that Cardservice
elects, in its sole discretion.
1.2. General Obligations.
a. Compliance with Law. Agent shall operate its business in a
professional manner, in compliance with all applicable local, state and
federal laws and regulations.
b. Compliance with Association Rules and Regulations and Cardservice
Rules and Regulations. Agent agrees that it shall be bound by all
Association Rules and Regulations and all Cardservice Rules and
Regulations as they now exist and as each may be amended or
supplemented from time to time.
c. Security. Agent shall, in accordance with Association Rules and
Regulations, maintain the security of all its records, including all
records it may have relating to Cardservice Merchants and their
customers (including all transaction records).
d. Records. The Agent, at Cardservice's request, shall provide
Cardservice with all files and materials related to Merchants acquired
by Agent. Cardservice shall reimburse Agent for its actual, reasonable,
direct costs of providing such files and materials, excluding any
internal overhead or allocated costs.
e. Prohibited Solicitations. Agent shall not, without first obtaining
Cardservice's written consent, solicit "high risk Merchants" as the
term is defined by Cardservice, from time to time.
f. Promotional Information. Agent shall not use the MasterCard or Visa
logos on any business card or stationery. MasterCard and Visa logos
shall only be used on Cardservice approved promotional materials, and
must contain the name, city and state of all of Cardservice's member
bank(s) along with the MasterCard and/or Visa logo. Cardservice shall
make available, from time to time, various pre-approved promotional
materials.
g. Advertising. Prior to any public distribution of any Web site,
advertising, recruitment and promotional material related to the
Cardservice Services, Agent shall submit all such material to
Cardservice for approval. Cardservice shall promptly review all such
material for the purpose of determining compliance with Cardservice's
policies. Publication of advertising without the prior written approval
by Cardservice shall be grounds for termination of this Agreement by
Cardservice on 5 days written notice. If Cardservice fails to approve
any materials submitted by Agent within 10 calendar days of receipt by
Cardservice, the materials will be deemed approved.
h. Business Telephones. Agent shall maintain at least one dedicated
telephone line which shall be listed and answered by reference to
Agent's approved fictitious business name, which shall include the name
"Cardservice."
i. Business Cards and Stationery. Agents and their sales
representatives shall carry Cardservice's business cards which they
shall utilize whenever selling Cardservice Services. Cardservice's
stationery shall be used for all written correspondence pertaining to
Cardservice Services. These products are available directly from
Cardservice.
j. Merchant Information. Agent shall cause each Merchant and
Prospective Merchant to furnish Cardservice with such financial
information as Cardservice may from time to time request including, but
not limited to, financial statements and Bank Card statements. Agent
shall use its best efforts to inform Cardservice of any information
that could reasonably be considered relevant to a determination of any
prospective or existing Merchant's creditworthiness.
1.3. Agent Warranties.
a. Agent shall not, and represents and warrants and covenants that its
Representatives will not, misrepresent the manner in which Cardservice
provides its services or the procedures Cardservice follows, including
services and procedures related to charge-backs, loss prevention,
ATM/Debit and equipment leasing.
b. Agent and its Representatives shall provide a full and fair
disclosure to all Merchants, including disclosures related to all
charges, minimum fees, limitations, initial and renewal terms of
agreements and warranty services.
c. Agent will not make, or offer to make, any payments to, or confer,
or offer to confer, any benefit upon any employee, agent or fiduciary
of any third party (including any government, or agency or
instrumentality thereof) with the intent to influence the conduct of
such employee, agent or fiduciary in relation to the business or
affairs of such third party.
d. Agent covenants not to directly or indirectly induce or influence
Merchants to cancel any existing Cardservice Merchant account.
e. Unless otherwise authorized by Cardservice, Agent shall not charge
Merchant for any service offered by Cardservice or a party other than
Cardservice that Cardservice currently provides or may provide from
time to time.
1.4. Assessments. Agent shall pay, immediately upon demand, all fines or
other assessments charged or assessed against Agent for the violation
of the rules identified from time to time in the Cardservice Compliance
Schedule, in the amounts specified from time to time in such schedule,
as posted on XxXxxxxXxxxxx.xxx. Cardservice shall have the right, but
not the obligation, to withhold payment of commissions and Residuals,
if any, to the extent necessary to collect the fines and assessments
charged or assessed by Cardservice. Fines and assessments shall be
levied by the Director of Sales Support or such other person as
Cardservice may designate from time to time. Agent shall have the right
to appeal the imposition of any fine or assessment if, within 7
calendar days of having received written notice of the imposition of
the fine or assessment, Agent delivers a written appeal to the most
senior Cardservice executive for sales. The appeal shall contain a
statement of all reasons why a fine or assessment should not have been
imposed. If Cardservice fails to act on the appeal within 10 calendar
days of receipt of the appeal, the appeal will be deemed sustained and
no fine or assessment shall be levied for such violation.
1.5. Sales Obligations. In soliciting for the purchase of Services from
Cardservice, Agent shall take such actions as Cardservice may from time
to time reasonably require, including: (i) ensuring that each
Prospective Merchant has fully completed the Cardservice Merchant
application; (ii) taking all necessary action to verify that each
Prospective Merchant conducts or intends to conduct a bona fide, lawful
business operation, including inspecting the Prospective Merchant's
premises to determine whether a Prospective Merchant has the proper
facilities, equipment, inventory and license to conduct the business,
or reviewing the Merchant's Internet site, as applicable; (iii) obtain
and submit to Cardservice, as appropriate, any information required by
Cardservice including financial statements, Bank Card statements and
corporate resolutions for each Prospective Merchant.
1.6. Merchant Agreements.
a. Agent shall only use the Merchant agreement and Merchant application
that has been designated by Cardservice and that is current at the time
it is presented to a Prospective Merchant.
b. All Merchant applications (whether partially or fully completed),
Merchant agreements and Merchant accounts and records are owned by
Cardservice and/or the Acquirer and may not be transferred, assigned,
sold or exchanged, in whole or in part, by Agent.
c. The discount rate and fees charged to the Merchant pursuant to the
Merchant agreement may be recommended by Agent, but in all cases shall
be subject to final review and approval by Cardservice and/or the
Acquirer in their sole discretion, respectively.
d. All Merchant applications are subject to review and rejection or
acceptance by Cardservice in its sole discretion.
2. Cardservice's Obligations
2.1. Grant of Authority. Cardservice hereby grants to Agent the right, on a
non-exclusive basis, to solicit Prospective Merchants for the purchase
of Services from Cardservice within the Territory as long as the
Merchant does not already have, and has not had in the last 90 days, an
open Cardservice Merchant account. Cardservice shall have the right, in
its sole discretion, to solicit directly and to retain other agents to
solicit Prospective Merchants for Services within the Territory.
2.2. Processing Services. Cardservice shall be responsible for all
processing and accounting functions relating to the clearing and
settlement of Bank Card transactions, including: (a) Merchant
processing and settlement; (b) Merchant credit research; (c) Merchant
activation and approval; (d) Merchant security and recovery; (e)
Merchant customer services; (f) Merchant chargeback and retrieval
services; and (g) all other back office services. Cardservice may
contract with other persons to perform these functions on behalf of
Cardservice.
3. Term
3.1. Effective Date. This Agreement is effective as of ____________ , 200__.
3.2. Term of Agreement. Subject to Sections 3.3, 3.4, 3.5 and 9.5(c), this
Agreement shall remain in effect for 1-year from the Effective Date
("the "Initial Term") and shall automatically renew for additional
1-year terms (each a "Renewal Term" and collectively, the "Term").
3.3. Termination by Agent. Agent may terminate this Agreement at the end of
the Initial Term or any Renewal Term by providing Cardservice with
written notice of non-renewal at least 60 days prior to the end of the
then current term.
3.4. Termination by Cardservice.
a. With Cause without any Right to Cure. In addition to any other
rights and remedies that it may have and notwithstanding Paragraph
3.4(b), Cardservice may immediately terminate this Agreement in its
sole discretion, by providing 5 calendar days prior written notice to
Agent, if any evidence is discovered indicating: 1) a failure by Agent
or Representative to perform any monetary obligation to Cardservice; 2)
the violation of any Cardservice confidentiality or intellectual
property rights protected by this Agreement; 3) the violation of any
applicable law or regulation; or 4) the commission of any act of fraud,
forgery, dishonesty, or other willful or malicious act.
b. With Cause with a Right to Cure. Cardservice may terminate this
Agreement if Agent is in breach of any of the terms and conditions of
this Agreement or is in violation of Association Rules and Regulations
or Cardservice Rules and Regulations, but only upon giving Agent
written notice of such breach and Agent's failure to cure such breach
within 10 Business Days after receipt of such notice, unless a cure
cannot reasonably be accomplished within such period. In that case, the
cure period will be tolled so long as the Agent commences a cure within
such 10-day period and thereafter diligently pursues such cure as
promptly as practical, but in no event may a cure period exceed 90
calendar days.
c. Termination for Convenience. Cardservice may terminate this
Agreement at any time after the Initial Term upon providing 30 days
prior written notice.
3.5. Agent Insolvency. If Agent makes any assignment of assets or business
for the benefit of creditors, or if a trustee or receiver is appointed
to administer or conduct its business or affairs, or if it is adjudged
in any legal proceeding to be either a voluntary or involuntary
bankruptcy, then the rights granted herein to Agent shall forthwith
cease and terminate without prior notice or legal action by
Cardservice.
4. Relationship of the Parties
4.1. Independent Contractor. Neither Agent, nor any of its Representatives,
is an employee of Cardservice for any purpose whatsoever, but each is
an independent contractor. Cardservice is interested only in the
results obtained by Agent. Cardservice shall not: have the right to
require Agent to (1) conform to any fixed or minimum number of hours
devoted to selling effort, (2) follow prescribed itineraries, (3) bind
Cardservice or (4) do anything else which would jeopardize the
relationship of independent contractor between Cardservice and Agent.
All expenses and disbursements, including those for travel and
maintenance, entertainment, office, clerical and general selling
expenses, that may be incurred by Agent in connection with this
Agreement shall be borne wholly and completely by Agent, and
Cardservice shall not be in any way responsible or liable therefore.
Neither Agent nor any Representative has, nor shall Agent or any
Representative hold itself out as having, any right, power or authority
to create any contract or obligation, either express or implied, on
behalf of, in the name of, or binding upon Cardservice, or to pledge
Cardservice's credit, or to extend credit in Cardservice's name.
Cardservice shall have no right or authority either hereunder or
otherwise to commit Agent or any Representative in any matter, cause or
thing whatever, without the prior written consent of Agent, or to use
Agent's name in any way not specifically authorized by this Agreement.
5. Sales Representatives
5.1. Sales Representatives. Agent shall have the right to appoint or
otherwise designate suitable and desirable Representatives. Agent shall
be solely responsible for Representatives and their acts.
Representatives shall be hired at Agent's own risk, expense and
supervision, and Representatives shall not have any claim against
Cardservice for salaries, residuals, commissions, items of cost, or any
other form of compensation or reimbursement. Agent represents and
warrants, and covenants, that Representatives shall be subordinate to
Agent and subject to each and all of the terms, provisions and
conditions applying to Agent hereunder.
5.2. Initial Sales Representative. Upon execution of this Agreement, Agent
shall promptly notify Cardservice as to the name, address and telephone
number of each of its Representatives who are currently marketing the
Services on behalf of Agent and shall further provide Cardservice with
such other information concerning Agent's Representatives as
Cardservice may require from time to time.
5.3. Subsequent Representatives. Agent shall provide Cardservice with a copy
of the Cardservice International Representative Registration Form, and
all other applicable documentation, for each new Representative added
prior to the Representative being permitted to solicit, make or submit
any sales of Services. In addition, Agent agrees to notify Cardservice,
in writing, of the termination of any Representative within 3 Business
Days of their termination.
5.4. Fraudulent Activities. If Agent becomes aware of any actual or alleged
fraudulent activities or misrepresentations by its Representatives,
whether or not related to Services, Agent shall promptly advise
Cardservice and Agent shall take all necessary corrective action the
Agent determines in its discretion, to be necessary or appropriate.
5.5. Employment Statement. Agent acknowledges that Representatives shall not
be and are not Cardservice employees. Agent shall furnish Cardservice
with all copies of contracts that relate to Services that contain the
signature of Agent or any Representative.
5.6. Representatives' Right to Use Trademark. Upon Agent's request
Cardservice may, in Cardservice's sole discretion, grant to a
Representative the right to use the Trademark in the Territory under
conditions substantially similar to those contained in this Agreement,
including contained in Section 7 hereof.
6. Merchant Relationship
6.1. Merchant Survivability. If this Agreement terminates for any reason,
Cardservice shall not be required to terminate any Merchant agreement
with any Merchant.
6.2. Right to Complete Business in Process. If Agent is terminated or if
Agent abandons a Prospective Merchant, Cardservice has the right, but
not the obligation, to complete the processing of such Prospective
Merchant's submitted application and to assist such Merchant with the
installation of any equipment.
6.3. Right of Cardservice or Acquirer to Change Merchant Pricing.
Cardservice or Acquirer shall have the right to change Merchant Pricing
at its sole discretion, from time to time, without prior notice to
Agent.
7. Licensing
7.1. Cardservice Trademark. Agent acknowledges that Cardservice is the
proprietor of the Trademark, including U.S. Trademark Registration
1,864,924 issued by the United States Patent & Trademark Office, which
registration is in full force and effect for the use of the term
"Cardservice" and variations thereof as more fully set forth in such
registration.
7.2. License. Cardservice grants to the Agent, during the Term of this
Agreement, the non-exclusive right to use, and the Agent hereby
undertakes to use, the Trademark and its distinctive labels and
packages, in the Territory, but only in connection with the marketing
to Prospective Merchants of Cardservice's Services and only in
compliance with the terms and conditions of this Agreement.
7.3. Marketing Restrictions: The permitted use by Agent of the Trademark
shall be subject to the instructions and restrictions of Cardservice,
in Cardservice's sole discretion. The Agent shall use the Trademark
only with respect to marketing Cardservice's Services in accordance
with the specifications and directions furnished to the Agent by
Cardservice from time to time, in Cardservice's sole discretion. Agent
shall refrain from any act or acts that may prejudice the
enforceability or validity of the title of Cardservice to the
Trademark.
7.4. Use of Trademark: Whenever Agent uses the Trademark in advertising or
in any other manner in connection with the products and services that
it sells or distributes pursuant to this Agreement, the Agent shall
clearly indicate Cardservice's ownership of the Trademark. Agent shall
provide Cardservice, prior to use, samples of all literature, logos and
trademark packages, labels and labeling prepared by Agent utilizing the
Trademark. Cardservice has the right to reject, in its sole discretion,
the use of any such sample. When using the Trademark, Agent shall
comply with all laws pertaining to trademarks, including laws relating
to marking requirements, in force at any time in the Territory. In
connection with any marks, including the Trademark, Agent shall include
any designation of ownership or rights specified by Cardservice, for
example, for marks that are registered, Agent shall use the designation
"(R)" in conjunction with its use thereof.
7.5. Ownership of Trademark. Agent acknowledges Cardservice's exclusive
right, title and interest in and to the Trademark and will not at any
time do or cause to be done any act or thing contesting or in any way
impairing or tending to impair any part of such right, title and
interest. In connection with the use of the Trademark, the Agent shall
not in any manner represent that it has any ownership in the Trademark
or registration thereof, and the Agent acknowledges that use of the
Trademark shall not create in the Agent's favor any right, title or
interest in or to the Trademark or the goodwill attached to and
associated with the Trademark, but all uses of the Trademark by the
Agent shall inure to the benefit of Cardservice.
Upon termination of this Agreement, the limited rights granted to Agent
to use the Trademark provided in this Section 7 shall immediately
terminate and Agent shall immediately cease and desist from all use of
the Trademark in any way and, at Cardservice's request, will deliver up
to Cardservice, or its duly authorized representatives, all material
and papers upon which the Trademark appears or to which the Trademark
relates, including correspondence and information on Merchants
solicited or procured while the Agent solicited on behalf of
Cardservice.
Upon termination of this Agreement, Agent shall immediately take all
necessary actions to correct information that states or suggests that
Agent is connected in any manner with Cardservice or its Trademark.
Such corrective action shall include referral sources such as telephone
and other directories, telephone information providers, postal offices,
electronic mail providers, letterhead, business cards, office signage,
Web page(s) on the Internet and other communication delivery services.
Agent shall direct that all inquiries be forwarded to Cardservice's
corporate headquarters or such other place, as Cardservice shall
designate. If Agent fails to take any required action, then Agent
appoints, without power of revocation, Cardservice as its attorney in
fact to act in Agent's place and with Agent's authority to take such
corrective actions.
Agent will at no time during or after the term of this Agreement
register, adopt or use, any word or xxxx which is likely to be similar
to or confusing with the Trademark. Agent shall market only Cardservice
products or services under the Trademark.
8. Equipment Purchases
8.1. Merchant Equipment Purchase. Agent may, as an independent reseller,
sell Merchants card processing equipment or Internet gateway services
and software so long as such card processing equipment, Internet
gateway services or software has been approved by Cardservice.
Cardservice shall approve card processing equipment, gateway services
and software that it determines, in its sole discretion, to be
compatible with its operational systems. Cardservice shall, for Agents
electing to purchase such items from Cardservice, publish price lists
from time to time. Agent must identify to Cardservice each item of Bank
Card processing equipment that every Prospective Merchant whose
application is submitted to Cardservice intends to use in conjunction
with Cardservice's Services.
8.2. Equipment Agreement. The sale, lease and/or rental of point-of-sale
terminals and other equipment shall be solely pursuant to separate
written agreements between Agent (or its designee) and Merchants. The
Cardservice name shall not appear on such agreements.
9. Payments
9.1. Right to Payment. Cardservice shall pay Residuals to Agent for Open
Accounts in accordance with this Section 9.
9.2. Duration of Payments. Unless modified by Cardservice pursuant to
Section 9.5 and subject to the conditions of Section 9.3 and Section
9.4, Residuals shall continue so long as a Merchant continues to
maintain an Open Account with Cardservice, but not to exceed 36 months
from the date on which a Merchant account is classified as an Open
Account.
9.3. Conditions for Payment.
a. Cardservice's obligation to pay Residuals shall cease if, during the
Term of this Agreement: i) Agent or any person having any ownership
interest in Agent, or any Representative of Agent engages in any act
that would injure Cardservice in its relationship with its employees,
or customers; ii) Agent induces any Cardservice merchant, whether or
not solicited by Agent, to discontinue their business relationship with
Cardservice; iii) Agent fails to remain current on all obligations to
Cardservice and Cardservice's acquiring bank(s); or iv) Agent fails to
remain in compliance with all terms and conditions of this Agreement.
b. Cardservice's obligation to pay Residuals shall cease if, after the
termination of this Agreement: i) Agent or any person having any
ownership interest in Agent, or any Representative of Agent engages in
any act that would injure Cardservice in its relationship with its
employees, or customers; ii) Agent induces any Cardservice merchant,
whether or not solicited by Agent, to discontinue their business
relationship with Cardservice; iii) Agent fails to remain current on
all obligations to Cardservice and Cardservice's acquiring bank(s); or
iv) Agent fails to remain in compliance with all terms and conditions
of this Agreement which survive termination of this Agreement.
9.4. Time of Payments. Payments of Residuals shall be made to Agent on or
about the 20th day of the month following the month in which payment is
earned in accordance with the Cardservice commission and residual
policy, as published from time to time by Cardservice.
9.5. Bank Card Processing Residuals for New Merchant Accounts.
a. Bank Card Processing Residuals for all Open Accounts opened after
the first day of the month of the execution of this Agreement shall be
calculated as a percentage of Gross Processing Revenue as posted in the
"Agent Residual Grid" ("Grid") on XxXxxxxXxxxxx.xxx. The percentage
shall be determined by plotting 1) The Gross MasterCard and Visa Sales
Volume for all such Open Accounts on the Grid's x axis (the "x
Coordinate"); and 2) the Agent's Current Level of Account Production on
the Grid's y axis (the "y Coordinate") (collectively, the
"Coordinates"). The Coordinates on the Grid shall be recalculated by
the first day of the last month of each calendar quarter. The quarterly
recalculation shall apply to all Open Accounts opened after the
effective date of this Agreement and shall be effective as of the first
day of the next calendar quarter (each a "Recalculation Date"). The
quarterly recalculation may result in an increase, decrease or no
change to the Residual percentage. The Residual percentage will be
increased if Agent's average monthly Gross MasterCard and Visa Sales
Volume or Current Level of Account Production over the 3 months
preceding the first day of the second month of each calendar quarter
cause the intercept of the Coordinates to move to a higher Residual
percentage on the Grid. The Coordinate values will only be reduced if
Agent's average monthly Gross MasterCard and Visa Sales Volume or
Current Level of Account Production over the 6 months preceding the
first day of the second month of each calendar quarter cause the
intercept of the Coordinates to move to a lower Residual percentage on
the Grid..
b. Agent's initial Coordinates shall be initially set at ___________
and ____________, until there is enough history to recalculate the
Coordinates pursuant to Section 9.5(a).
c. Cardservice has the right, in its sole discretion, to unilaterally
modify the Grid in so far as the Grid affects Cardservice Residual
obligations prospectively or in so far as the Grid affects Residuals
paid on existing Open Accounts or both, without Agent's consent, by
giving Agent 90 day's prior written notice. Upon such unilateral
modification by Cardservice, Agent may terminate this Agreement at any
time within 90 days of receiving Cardservice's notice of such
modification by giving written notice of termination to Cardservice
within such 90-day period.
Example A. If Agent's y Coordinate from the prior calendar quarter is
40 and Agent generates 32 Open Accounts in August, 74 Open Accounts in
September and 44 Open Accounts in October, Agent's y Coordinate as of
the Recalculation Date of January 1st will be increased to 50.
Example B. If Agent's x Coordinate from the prior calendar quarter is
$500,000 and Agent's Open Accounts generate $400,000 in Gross
MasterCard and Visa Sales Volume in May, $500,000 in June, $700,000 in
July, $300,000 in August, $200,000 in September and $300,000 in
October, Agent's x Coordinate as of the Recalculation Date of January
1st will be decreased to $400,000.
9.6. Merchant Losses. Cardservice shall bear the risk for Merchant Losses
(other than those caused by Agent's or its Representatives willful
misconduct). Cardservice shall not deduct Merchant Losses (other than
those caused by Agent's or its Representatives willful misconduct) from
Residuals.
9.7. Third Party Referral Sources. If Cardservice determines, in its sole
discretion, that Agent has been substantially responsible for
introducing Cardservice to a third party with whom Cardservice enters
into a written referral agreement and from whom Cardservice receives
referrals of Prospective Merchants, Cardservice may, in its sole
discretion, credit Agent for each referred Prospective Merchant who
submits a Merchant application to Cardservice that is accepted and
results in an Open Account. To "credit Agent" means that Cardservice
shall pay Agent Residuals for Referred Merchants, provided, however,
that Agent's Residuals for such Referred Merchants shall be reduced by
50% of any referral fee paid by Cardservice to such third party during
each month preceding payment of Agent's Residuals for such Open
Account. Such reduction from Agent's Residuals shall apply to all
referral fees paid by Cardservice after the execution of this Agreement
including referral fees paid for Merchants referred by third parties
prior to the execution of this Agreement.
9.8. LinkPoint Secure Payment Gateway and Other Third Party Products &
Services. Cardservice shall pay Agent a Residual for each LinkPoint
Secure Payment Gateway account that Agent sells. The amount of the
Residual for LinkPoint Secure Payment Gateway accounts shall be the
amount collected by Cardservice that is above the "monthly usage fee"
established by Cardservice for the LinkPoint Secure Payment Gateway
from time to time. In addition, Cardservice shall, from time to time,
at its sole discretion, provide for the payment of Residuals to Agent
for the sale of other third party products and services.
9.9. Right to Offset. Notwithstanding Agent's right to any payments
referenced in this Agreement, and in addition to any rights now or
hereafter granted under applicable law and not by way of limitation of
any such rights, Cardservice is hereby authorized by Agent at any time
and from time to time, without notice or demand to Agent or to any
other person (any such notice and demand being hereby expressly
waived), to set off, recoup and to appropriate and apply any and all
funds of Agent held by Cardservice or any of its affiliates, including
First Data Merchant Services and First Financial Bank, against and on
account of Agent's obligations to Cardservice or any of its affiliates
under this Agreement and any other agreement with Cardservice or any of
its affiliates, including fees for equipment or Services, whether such
obligations are liquidated, unliquidated, fixed, contingent, matured or
unmatured. Agent is prohibited from setting-off, offsetting or
otherwise reducing or applying against any amounts due and owing to
Cardservice under this Agreement or otherwise, any amounts owed or
alleged to be owed to Agent by Cardservice under this Agreement or
otherwise.
Cardservice may, but is not required to, exercise the rights describes
in this Section 9.9 by direct debit to Agent's bank account. This
offset right is in addition to all other remedies available to
Cardservice.
9.10. Right to Debit and Credit Agent's Bank Account. All financial
transactions between Agent and Cardservice, including payment for
equipment and terminal purchases, may be automatically debited and
credited by Cardservice, in its sole discretion, directly through
Agent's bank account. Agent irrevocably consents to the debiting and
crediting of its bank account(s) as provided herein. With respect to
equipment transactions only, Cardservice shall provide 10 days advance
written notice to Agent prior to initiating a debit entry. In order to
activate automatic debit and credit service, Agent shall provide
Cardservice with the required depository information and execute ACH
Authorization Agreement Direct payments (Debits) Form and ACH
Authorization Agreement Direct Payments (Credits) Form that will be
provided to Agent, and any other form that Cardservice may request form
time to time.
9.11. Residual Rights Upon Conversion. Notwithstanding anything to the
contrary in this Agreement, if during the Term of this Agreement, Agent
executes an agreement with Cardservice for the exclusive solicitation
of Cardservice Services, Cardservice shall, from the execution date of
the exclusive agreement forward, pay Agent residuals on all Eligible
Accounts opened during the Term of this Agreement at the residual rate
established in the exclusive agreement.
10. Confidentiality
10.1. Restriction on Use or Disclosure of Trade Secrets. During the term of
this Agreement, Agent will be given access to certain of Cardservice's
trade secrets, including information, inventions and processes, all of
confidential nature that are Cardservice's property and are or may be
valuable to, or used in the course of, Cardservice's business. Agent
shall not disclose to anyone, directly or indirectly, either during the
term of this Agreement or at any time thereafter, any such trade
secrets, or use them other than in the course of its business
relationship with Cardservice. All documents that Cardservice prepares,
or confidential information that might be given in the normal course of
business, shall remain in Agent's possession and control. Under no
circumstances shall any such information or documents be copied without
Cardservice's prior written consent.
10.2. Confidentiality. The terms, conditions and existence of this Agreement
are strictly confidential. Agent shall indemnify, defend and hold
Cardservice harmless from any and all loss, cost, injury, damage or
claim that may result, directly or indirectly, from the failure of the
Agent to maintain the confidentiality of the information provided
pursuant to this Agreement. Any violation of this confidentiality
clause shall be grounds for terminating this Agreement and any and all
payments otherwise payable under this Agreement. Any termination of
payments by Cardservice shall not limit Cardservice's right to recover
damages arising from Agent's failure to perform under this Agreement,
including under this Section 10.2, to seek equitable remedies and to
pursue all of its other rights and remedies pursuant to this Agreement.
10.3. Association Exception. Notwithstanding anything herein to the contrary,
Agent's confidential information may be made available by or on behalf
of Cardservice to Visa, MasterCard or any other Association or to any
other supervisory or regulatory authority to which Cardservice may be
subject, upon their written request.
11. Indemnity and Limitation of Liability
11.1. Indemnification. Agent shall indemnify, defend and hold harmless
Cardservice and its officers, directors, shareholders, employees,
agents and representatives against any and all liability, demands,
claims, costs, losses, damages, recoveries, settlements and expenses,
including without limitation claims based in tort or for personal
injury (including interest, penalties, attorneys' fees, accounting
fees, expert witness fees, costs and expenses) incurred by Cardservice,
directly or indirectly arising from or related to (i) any debts
incurred by Agent including debts incurred with telephone, utility, and
express mail companies, (ii) any claim of any officer, director,
shareholder, employee or Representative of the Agent made against
Cardservice for any compensation, benefit or other payment to such
person, (iii) any activity or representation by Agent or Agent's
employees, Representatives or contractors in marketing, advertising,
promoting or otherwise engaging in any activity arising from or related
to this Agreement, (iv) any actions concerning alleged Agent or
Representative improprieties in the solicitation, sale or leasing of
Services or equipment; and (v) any breach of any term or condition of
this Agreement, any Association Rules or Regulations, or Cardservice
Rules and Regulations, or of any representation or warrant of Agent
made in or in connection with this Agreement being false or misleading.
11.2. Statute of Limitations. Except for the indemnification rights set forth
in Section 11.1 above, the parties agree that notwithstanding the fact
that the statute of limitations for bringing any legal action on a
written contract is 4 years, and that other limitation periods apply
depending on the type of act, omission or violation being alleged, any
action, legal or equitable, based on or arising out of the subject
matter of this Agreement, and whether based on contract, tort, strict
liability or some other legal or equitable theory of recovery, must be
commenced within 1 year of the date of the first alleged act, omission
or violation.
11.3. Limitation of Liability. Notwithstanding anything contained in this
Agreement or otherwise, Cardservice's cumulative liability to Agent and
anyone claiming by through or under Agent, for all losses, cost,
claims, suits, controversies, breaches or damages for any cause
whatsoever (including those arising out of or related to this
Agreement), and regardless of the form of action or legal theory shall
not exceed, in the aggregate, $500,000. Agent understands the
limitation on damages to be a reasonable allocation of risk and
expressly consents to such risk allocation.
11.4. Exclusion of Damages. Notwithstanding anything in this Agreement to the
contrary or otherwise, in no event shall either party, its parents,
affiliates or any of its or their directors, officers, employees,
agents or sub-contractors be liable under any theory of tort, contract,
strict liability or other legal or equitable theory for lost profits,
exemplary, punitive, special, incidental, indirect or consequential
damages, each of which is hereby excluded by agreement of the parties
regardless of whether such damages were foreseeable or whether either
party or any entity has been advised of the possibility of such
damages.
12. General Provisions
12.1. Effect of Headings. The subject headings of the sections, subsections,
paragraphs and subparagraphs of this Agreement are included for
convenience only and shall not affect the construction or
interpretation of any of its provisions.
12.2. Entire Agreement. This Agreement, including the Exhibits hereto,
constitutes the sole and exclusive terms and conditions and agreement
between the parties relating to the subject matter hereof, and
supersedes all prior or contemporaneous discussions, writings,
negotiations, understandings and agreements with respect thereto,
including Agent's Trademark Licensing Agreement with Cardservice and
any addenda thereto.
12.3. Waiver or Modification Ineffective Unless in Writing. No waiver,
alteration or modification of any of the provisions of this Agreement
shall be binding unless executed in writing and signed by a duly
authorized representative of both parties to this Agreement. Nothing
contained herein shall be construed as a waiver of any of the legal or
equitable rights of Cardservice, all of which are hereby expressly
reserved. The waiver by a party of any term, covenant, condition or
obligation contained in this Agreement or of any breach thereof, shall
not be deemed a waiver of any other term, covenant, condition or
obligation, or any future breach thereof or default there under,
contained in this Agreement. No single or partial exercise of any right
under or with respect to this Agreement shall preclude its further
exercise. Any delay or omission by a party to exercise any right or
power arising from any breach or default of the other party with
respect to any of the terms, provisions or covenants contained in this
Agreement shall not be construed to be a waiver, including any
subsequent breach or default of the same or other terms, provisions or
covenants contained in this Agreement.
12.4. Non-Transferable. Neither this Agreement nor the rights granted
pursuant to this Agreement shall be transferable without Cardservice's
prior written consent.
12.5. Assignment. Agent has a limited right of assignment of the benefits
payable pursuant to this Agreement. These rights are limited to the
following:
a. Agent may, upon Cardservice's prior written consent, if it is a
corporation, partnership or limited liability company, assign its
rights to any one or more legal owners of the entity after giving
written notice of the contemplated assignment to Cardservice no less
than 30 or more than 90 days in advance. Cardservice shall not withhold
its consent unreasonably.
b. In the event of the death of a holder of the rights to payment
pursuant to this Agreement, payments shall be made to the estate of the
deceased individual, provided that the beneficiaries agree expressly
and in writing, to be bound by the terms of this Agreement.
12.6. Written Notice.
a. Communications Regarding Agreement. All communications regarding or
arising from this Agreement shall be sent to the Agent at the address
set forth below the signature line of this Agreement as the Agent's
place of business and to Cardservice at the Moorpark, California
address set forth above. Any notice(s) required or permitted to be
given under this Agreement shall be deemed sufficiently given by
facsimile transmission with the original mailed by registered or
certified mail, postage prepaid, and addressed to the party to be
notified at its address shown at the beginning or below the signature
line of this Agreement, or at such other address as may be furnished in
writing to the notifying party.
b. Effective Date of Communications. Any written notice shall be deemed
delivered and received by the other party 5 days after deposit in the
U.S. mail, postage prepaid, if sent to the addressee at the address
stated in this Agreement or such other address as may hereafter be
specified by notice in writing.
12.7. Severability. If any portion of this Agreement is held invalid or
unenforceable by any court of final jurisdiction, it is the intent of
the parties that all other provisions of this Agreement be construed to
remain fully valid, enforceable and binding on the parties.
12.8. Governing Law, Venue and Waiver of Jury Trial. This Agreement shall be
governed by the laws of the State of California. Any action taken by
either party shall have as its exclusive venue the County of Ventura,
California. The non-exclusive venue for any disputes under or related
to this Agreement shall be a court of competent jurisdiction located in
Ventura County, State of California, and each party irrevocably submits
and attorns to such jurisdiction and waives any right to assert a claim
of forum nonconveniens as to any such action filed by a party in such
jurisdiction. Cardservice and Agent irrevocably waive any and all
rights they may have to a trial by jury in any judicial proceeding
involving any claim relating to this Agreement. Agent additionally
waives personal service of process and consents that service of process
upon it may be made by certified or registered mail, return receipt
requested, at the address provided below the signature line of this
Agreement.
12.9. Survival of Terms. The parties expressly agree that Sections 1.2(b),
1.2(c), 1.2(d), 1.2(j), 1.3, 1.4, 4, 6, 7.1, 7.5, 9, 10, 11 and 12 and
13 shall survive the termination of this Agreement and shall remain
enforceable to the extent of any remaining unfulfilled performance
obligation notwithstanding such termination.
12.10. No Breach. Agent warrants that entering into this Agreement will not
constitute a breach of any other agreement to which Agent is or may
have been a party. In particular, Agent warrants that it has not agreed
to any covenant not to compete. Agent further warrants that it is not
party to any confidentiality agreement, which would become at issue
upon entry into force of this Agreement.
12.11. Word Usage. Unless the context clearly requires otherwise, (a) the
plural and singular numbers shall each be deemed to include the other;
(b) the masculine, feminine, and neuter genders shall each be deemed to
include the others; (c) "shall," "will," or "agrees" are mandatory, and
"may" is permissive; (d) "or" is not exclusive; and (e) "includes" and
"including" are not limiting.
12.12. Authority. The person executing this document on behalf of Agent
warrants that they have the full right, capacity and authority to cause
such party to enter into this Agreement and that such party has all
necessary authority to perform this Agreement.
12.13. No Presumption Against Drafter. Cardservice and Agent have jointly
participated in the negotiation and drafting of this Agreement. The
Agreement shall be construed as if drafted jointly by Cardservice and
Agent, and no presumptions arise favoring any party by virtue of the
authorship of any provision of this Agreement.
12.14. Scope of Agreement. This Agreement is only designed and intended to set
forth the terms and conditions pursuant to which Agent shall represent
Cardservice. This Agreement is not intended to regulate Agent's conduct
in representing other ISOs.
13. Definitions
Whenever used in this Agreement, the following terms shall have the following
meaning:
13.1. Acquirer means a member as defined by Association Rules and Regulations
that acquires the data relating to a Bank Card, credit, debit and other
transaction between a merchant and a card holder and directly or
indirectly exchanges such transaction records with other members of an
Association, including Visa and MasterCard.
13.2. Association means an entity formed to administer and promote credit,
debit and other cards, including Visa and MasterCard and any other
entity whose cards are accepted by merchants for payment for goods or
services.
13.3. Association Rules and Regulations means the rules and regulations now
existing, as they may be modified in the future, and any rules and
regulations hereafter promulgated by an Association, including the
rules and regulations contained in the Visa U.S.A. Inc. ("Visa")
Operating Regulations and MasterCard International Incorporated
("MasterCard") Operations Manual and the rules and regulations of any
other Association, as applicable.
13.4. Bank Card means a credit card or debit card issued by a member of an
Association, including Visa and MasterCard, and bearing its respective
trade name, trademark, and/or trade symbol.
13.5. Bank Card Processing Residuals is a subcategory of the term "Residual"
and means those recurring payment obligations of Cardservice to Agent
which is calculated, as described in Section 9.5, as a percentage of
Gross Processing Revenue for all Open Accounts solicited by Agent,
except those for which Residual rights have already been purchased by
Cardservice.
13.6. Business Day means any calendar day other than Saturdays, Sundays, or
California or federal holidays.
13.7. Cardservice Rules and Regulations means the guidelines, as they now
exist and as they may be modified or supplemented in the future, that
are posted on XxXxxxxXxxxxx.xxx or distributed through Agent memoranda,
which provide the standards and conditions for the Agent's conduct in
soliciting and servicing, as applicable, Merchants for Cardservice
Services. In the case of a conflict between the guidelines posted on
XxXxxxxXxxxxx.xxx and the memoranda, the guidelines posted on
XxXxxxxXxxxxx.xxx shall control.
13.8. Current Level of Account Production means the number of new Merchant
accounts opened by Agent during a specified time period.
13.9. Eligible Accounts means those Open Accounts that: i) are either in
their first renewal term or have been open for more than 12 consecutive
months; ii) are not in collections; iii) have not provided Cardservice
with notice of cancellation; and iv) comply with all Association Rules
and Regulations.
13.10. Gross Processing Revenue means all Income on Open Accounts, including
those in collections and including those for which Cardservice has
purchased the Residual rights, minus Association interchange fees and
Association dues and assessments. Refunds (other than those caused by
processing errors) or Merchant losses (other than those caused by
Agent's or its Representative's willful misconduct) from Gross
Processing Revenue are not subtracted from Income for purposes of
calculating Gross Processing Revenue.
13.11. Gross MasterCard and Visa Sales Volume means all MasterCard and Visa
Bank Card payments accepted by Merchant which are processed and settled
through Cardservice, are not fraudulent and do not result in a
chargeback.
13.12. Income consists of the following items on all Open Accounts: (1) all
discount fees (qualified, mid-qualified, and non-qualified) on
MasterCard, Visa, Diners, debit and JCB; (2) transaction fees, (3)
batch header fees, (4) address verification service fees, (5) monthly
minimum fees, (6) customer support fees, (7) statement fees, (8)
monthly Cardservice Merchant Club fees, (9) American Express Residuals,
(10) Discover Residuals, (11) JCB fees, and (12) chargeback/retrieval
fees.
13.13. Merchant means an entity who has submitted an application to
Cardservice, which application indicates Merchant has been solicited by
Agent, and based on that application, then contracts with Cardservice
and Cardservice's Acquirer to originate and process electronic
transactions.
13.14. Merchant Losses means all losses experienced by Cardservice
attributable to (i) chargebacks in excess of a Merchant's reserve
account and (ii) uncollected Merchant fees or uncollected Merchant
processing revenue.
13.15. Merchant Pricing means all monies charged Merchant by Cardservice.
13.16. Open Account means any Cardservice Merchant account solicited by Agent
that has been accepted by Cardservice, has been classified as "open" on
a First Data Merchant Services settlement platform and has not been
cancelled or terminated.
13.17. Prospective Merchant means any entity solicited by Agent for Services
to be provided by Cardservice.
13.18. Representative means all salespersons, employees, agents or
representatives appointed or designated by Agent to act on Agent's
behalf in soliciting Prospective Merchants.
13.19. Residuals mean monthly recurring payment obligations owed by
Cardservice to Agent pursuant to Section 9.5, and 9.8 of this
Agreement. The term Residuals shall not include any payment obligations
owed by Cardservice that do not recur on a monthly basis.
13.20. Services means electronic transaction processing and facilitation of
the payment of charges representing purchases or leases of goods and
services made with Bank Card related services and support systems.
13.21. Territory means the United States, as currently defined by Visa.
13.22. Trademark means that certain U.S. Trademark Registration 1,864,924 and
other registrations issued from time to time by the United States
Patent & Trademark Office for the use of the term "Cardservice" and
variations thereof as more fully set forth in said registrations in
addition to all rights to the term "Cardservice" and variations thereto
arising through usage and state registrations.
Agent, Inc.
By: __________________ Dated:
_____________________
(print name)
Address:
Cardservice International, Inc.
By: _______________________ Dated:
