PROCESSING SERVICE AGREEMENT
This Processing Service Agreement is between you (hereinafter “Agent”) and Charge.com Payment Solutions, Inc., a Florida Corporation, DBA Charge.com (hereinafter “CC”). You are required to read, agree with and accept all of the terms and conditions contained in this Agreement.
Whereas, Agent engages in the business of marketing services to business entities that wish to accept Cards (as hereinafter defined) as payment for goods and services; and
Whereas, CC presently provides Merchant Card Services (as hereinafter defined), to merchants through bank(s) that are members of the Card Associations (as hereinafter defined), and whereas, CC wishes to expand its market share by retaining Agent to assist in marketing and servicing of its Merchant Card Services; and
Whereas, Agent wishes to undertake certain duties and responsibilities for marketing CC’s Merchant Card Services.
Now, therefore, in consideration of the mutual promises and the terms and conditions contained herein, the parties hereto agree as follows:
SECTION 1 – DEFINITIONS
1.0 Except as otherwise indicated, and unless the context otherwise clearly requires, the following terms shall have the following meanings in all parts of this Agreement.
(a) “Agent” shall include its successors, permitted assigns, subsidiaries, affiliates, principals, officers, directors, employees, and agents.
(b) “Card” means (i) a valid credit or debit card in the form issued under license from Visa U.S.A., Inc. or Visa International, Inc. (collectively “Visa”) or MasterCard International, Inc. (“MasterCard”) or (ii) any other valid credit card, charge card or debit card accepted by Merchant with CC’s prior written approval.
(c) “Card Association” means Visa U.S.A. Inc., Visa International, Inc., MasterCard International, Inc. or any other Card Issuers that provide Cards that are accepted by Merchant by agreement with Bank and BSP (Bankcard Service Provider).
(d) “Cardholder” means the person whose name is embossed upon the face of the card.
(e) “Gross Sales” means the total value of card sales generated by an individual Merchant, for any stated time period, and presented to a Member Bank for processing and collection.
(f) “Member Bank” means any member of Visa and/or MasterCard that has registered CC as its agent to provide Merchant Card Services.
(g) “Merchant” means each party solicited by Agent and with which CC and a Member Bank enter into a Merchant Agreement as a result of such solicitation.
(h) “Merchant Account” means a specific and unique numbered account established by CC for the processing of a Merchant’s Card Transactions.
(i) “Merchant Agreement” means any agreement in effect by and among CC, a Member Bank and a business that has been solicited by Agent under this Agreement, and shall include any application required to determine if a business would be accepted as a merchant.
(j) “Merchant Card Service” means the operations relating to the acceptance, processing and collection of Transactions on behalf of Merchants by CC. Such operations include, but are not limited to solicitation of prospective Merchants, credit review and approval of Merchants, clearing and settlement of Transactions, customer services and chargeback and retrieval services.
(k) “Merchant Program” means the operations, policies, and procedures as established by a Member Bank for CC for the processing and settlement of Card Transactions for Merchants.
(l) “Merchant Program Standards” are the written policies and procedures that may be set forth, from time to time, by Member Bank and CC, to govern the operations of the Merchant Processing Program, including credit and standards to be used by Agent in the solicitation of prospective merchants and policies and procedures to ensure that relationships with Merchants are satisfactory and that the Merchant Program is maintained in a financially safe and sound manner.
(m) “Rules” means the rules and regulations of the Card Associations, as they may exist from time to time, and the rules and regulations of any debit network or federal or state department or agency having jurisdiction over the activities of a Member Bank, CC or Agent.
(n) “Sales Person” or “Sales Persons” means those individuals that have been identified by Agent and are managed by Agent to solicit and sign Merchants for CC under the terms of this Agreement.
(o) “Transaction” means any sale of goods or services, or credit for such, from a Merchant for which the customer makes payment through the use of any Card and which is presented to a Member Bank for collection.
SECTION II – MERCHANT PROGRAM MARKETING
2.1 Marketing Duties of Agent. Agent shall identify prospective Merchants that Agent believes will meet Merchant Program Standards.
2.2 Merchant Program Standards. Agent shall faithfully and consistently apply Merchant Program Standards to all prospective Merchants and Merchant Agreements, and acknowledges that CC or its Member Bank may at any time, and from time to time, amend or otherwise change such standards to ensure the financial safety and soundness of the Merchant Program. Agent hereby agrees to accept and thereafter abide by all such amendments and changes.
2.3 Use of Merchant Agreements. Agent shall use only the form of Merchant Agreement that has been approved by CC for Agent’s use with the Merchant Program. Agent shall not make any changes or modifications to any Merchant Agreement without the prior written consent of CC. CC reserves the right to amend or change in any manner the Merchant Agreement to be used by Agent, including changes to the discount rate, Transaction fees and all other fees due from Merchants.
2.4 Approval of Merchant Agreements. Agent acknowledges that all Merchant Agreements are to be approved by CC and/or Member Bank, at its sole discretion, and will become effective only upon such approval. Therefore, Agent will not make any promise to or create any impression with a prospective Merchant that its Merchant Agreement will be approved prior to Member Bank’s review and approval. Further, Agent acknowledges that all aspects of the Merchant Program are subject to the management and approval of CC and/or Member Bank, and Agent shall make no representations to the contrary.
2.5 Acceptable Merchants. Agent shall market the Merchant Program only to bona fide and lawful businesses and in accordance with the Merchant Program Standards and this Agreement. Further, Agent shall promptly notify CC in writing of any adverse information that Agent receives relating to a Merchant, including information regarding a Merchant’s financial condition, use of Cards for any purpose other than payment for the bona fide sale of goods and services, changes in Merchant’s method of doing business or types of goods or services or any other information relating to Merchant that would have a material effect on Merchant’s ability to conform to the terms of it’s Merchant Agreement.
2.6 Marketing Materials. Agent shall use only those marketing and promotional materials that have received CC’s prior written approval. Prior to submitting materials for such approval, Agent shall independently determine that the materials comply with Rules, Merchant Program Standards and this Agreement. Provided, however, this section shall not apply to any marketing materials used by Agent that do not relate to the Merchant Program or the provision of services that are not subject to Card Association Rules.
SECTION III – EXPENSES AND COMPENTSATION
3.1 Expenses. Agent shall be responsible for payment of all expenses relating to its performance of this Agreement, and, except as set forth in section 3.2, CC shall have no obligation whatsoever to reimburse Agent for any expenses incurred by Agent in connection with this Agreement. Further, Agent shall be solely responsible for determining whether payment will be made for expenses of any Sales Person and shall be solely liable for any such payment.
3.2 Review of Documents. CC shall be responsible for expenses and legal fees incurred by CC in connection with its initial review of all agreements, marketing materials and other documentation relating to the Merchant Program that are proposed by the Agent.
3.3 Compensation. During any period of time in which this Agreement remains in effect, compensation for US merchants referred to CC will be paid to Agent for approved referrals in accordance with the payout schedule listed on http://charge.com/affiliates.aspx. For the purposes of this Agreement, n referral shall be deemed to be approved only if the referred merchant�s account remains open for forty five consecutive days. Agents referring 20 or more approved referrals each month may choose to receive 50% of the revenue received by CC for all merchants referred by Agent that are approved by CC. As used herein, revenue shall mean the total revenue actually received by CC for each merchant account referred by Agent less interchange, dues, assessments, bank fees and any other actual costs or fees paid to or deducted by CC’s service providers and processors; if, for any reason, CC receives no revenue for any merchant referred by Agent, no compensation for such merchant will be due to Agent. Agents shall receive no compensation for self-referrals meaning that if Agent is an owner, officer, or employee of a referred merchant, no compensation shall be paid to Agent for referring such merchant.
a. Compensation to Sales Persons. Agent shall determine reasonable compensation to be provided to Sales Persons employed in marketing Merchant Card Services and Agent shall be responsible for providing such compensation to each Sales Person in which Agent employs.+
b. Losses. Agent shall be liable for all chargebacks or Card Association fines caused, directly or indirectly, by Agent’s misrepresentation, fraud, violations of the Rules, or other actions.
SECTION IV – ADDITIONAL OBLIGATIONS OF AGENT
4.1 Compliance with Policies and Procedures. Agent agrees to comply with CC and the Member Bank’s policies and procedures and with Rules. Agent agrees that CC, Member Bank, the Card Associations and any federal or state regulatory agency having jurisdiction over Member Bank or CC may, from time to time, amend or revise their respective Rules, policies, and procedures. Agent hereby agrees to accept and abide by all such amendments and revisions within ten (10) days after receipt of such revisions (or immediately if amendments and revisions relate to Rules and require immediate compliance).
4.2 Merchant Funds. Agent acknowledges that all funds to be paid to or by Merchants in connection with the Merchant Program shall be under the sole control of CC’s Member Bank.
SECTION V – REPRESENTATION AND WARRANTIES OF AGENT
5.1 Agent represents and warrants to CC as follows:
(a) Agent has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against Agent in accordance with its terms and no provision requiring Agent’s performance is in conflict with Agent’s obligations under any charter or any other agreement (of whatever form or subject) to which Agent is a party or by which it is bound.
(b) If other than a sole proprietorship, Agent is duly organized, authorized and is in good standing under the laws of the state of its organization and is duly authorized to do business in each other state in which Agent’s business, including marketing of the Merchant Program, make such authorization necessary or required.
SECTION VI – NON-SOLICITATION; NON-CIRCUMVENTION
6.1 Non-Solicitation of Merchants. Without CC’s prior written consent, Agent shall not cause or permit any of its employees, agents, principals, affiliates, subsidiaries, Sales Persons (including Sales Personnel) or any other person or entity (i) to proactively solicit or provide Merchant Card Services to any Merchant referred to CC; (ii) to proactively solicit or otherwise cause any Merchant to terminate its participation in the Merchant Program; or (iii) to proactively solicit or market Merchant Card Services to any Merchant that is already directly or indirectly provided Merchant Card Services by CC, whether or not such are provided under the terms of this Agreement. This section 6.1 shall survive any termination of this Agreement.
6.2 Non-Circumvention. Agent shall not attempt to circumvent any business relationships CC has with any processors, banks, or any other entities introduced by CC or discussed with CC. Agent shall not enter into an agreement or conduct business with any entity introduced by CC or discussed with CC without the prior written consent of CC.
SECTION VII – TERM AND TERMINATION
7.1 Term. The initial term of this Agreement shall be for a period of six (6) months, commencing on the date first set forth above. This Agreement shall thereafter be automatically renewed for additional terms of six (6) months each unless either party notifies the other no later than thirty (30) days prior to the end of the current term that it does not wish to renew this Agreement.
7.2 Default. Either party shall have the right to terminate this Agreement at any time if:
(a) the other party breaches any of the provisions of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof has been sent by the non-breaching party; or
(b) The other party (i) becomes insolvent; (ii) fails to pay its debts or perform its obligations in the ordinary course of business as they mature; (iii) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or composition for the benefit of creditors.
7.3 Failure to comply with Rules. CC may immediately terminate this Agreement for any material default by Agent with respect to its obligations to comply with Rules. CC may, at its sole discretion, effect such termination upon delivery of written notice to Agent without regard to any provisions for cure of default contained in section 7.2 (a).
7.4 Regulatory Demand. If Visa, MasterCard or any federal or state regulatory agency having jurisdiction over the subject matter of this Agreement makes a demand that either CC or Member Bank discontinue or substantially modify the Merchant Program, either party in its sole discretion may terminate this Agreement upon written notice to the other, in which case neither party shall be deemed to be in default by reason of such termination. Agent shall be entitled to continue to receive compensation as provided in Section 8.1 unless prohibited by the entity making the demand for discontinuance or modification.
SECTION VIII –TERMINATION OF COMPENSATION
8.1 Termination of Compensation. If Agent breaches this Agreement, CC shall have no further obligations for payment of compensation as set forth in Section 8.1. In the event Agent breaches Section 6, Agent shall, upon demand by CC, be required to pay damages to CC in an amount equal to the revenue that CC would have earned had Agent had not breached this Agreement, including revenue received by Agent as a result of Agent’s breach of Section 6. CC’s rights under this section shall be in addition to all other rights granted to CC under this Agreement or otherwise at law or in equity.
SECTION IX – ADDITIONAL TERMS AND CONDITIONS
9.1 Confidentiality of Information. Each party acknowledges that it may directly or indirectly disclose information concerning its trade secret, methods, processes or procedures and other confidential financial or business information (including, without limitation, information received from third parties and the Card Associations) (the “Confidential Information”) to the other party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information. Each party may disclose such Confidential Information to employees and agents who require such knowledge to perform services under this Agreement. Except as otherwise contemplated by this Agreement, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party, and the duty of confidentiality created by this section shall survive any termination of the Agreement.
(a) Agent agrees to indemnify, defend, and hold harmless CC, its employees, agents, or Member Banks from and against any loss, liability, damage, penalty or expense (including attorneys’ fees and cost of defense) they may suffer or incur as a result of (i) any failure by Agent to comply with the terms of this Agreement; (ii) any warranty or representation made by Agent being false or misleading; (iii) any representation or warranty made by Agent to any third person other than as specifically authorized by this Agreement.
(b) Agent shall notify CC of any claim or threat of claim of which Agent becomes aware and that may give rise to a request for indemnification under this section 9.2.
9.3 Injunctive Relief; Specific Performance. Each party agrees that in the event of any action by the other party that in the non-breaching party’s reasonable judgment will create an actual or threatened breach of this Agreement, the non-breaching party’s remedies shall include specific performance or injunctive relief, or both, in addition to any and all remedies at law or in equity and all such rights shall be cumulative.
9.4 Relationship of Parties. CC intends no contract of employment, express or implied, with either Agent or Sales Persons, and Agent shall make no representations to the contrary.
9.5 Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute consent to, waiver of, or excuse for any different or subsequent breach.
9.6 Assignment. Agent shall not assign, delegate, subcontract, license, franchise, or in any manner attempt to extend to any third party any right or obligation under this Agreement without the prior written consent of CC.
9.7 Amendments. CC may, at its sole discretion, amend this Agreement from time to time without notice. Updated versions of this Agreement will be posted on CC’s affiliate web page at http://charge.com/affiliates.aspx and Agent agrees to be bound by such updated agreements.
9.8 Notices. Agent agrees and consents to receive via email all notices, communications, disclosures, agreements, and documents. Agent agrees to monitor its email inbox along with its spam or junk mail folder for such communications.
9.9 Severability. The invalidity of any section or subsection hereof shall not affect the validity of any other section or subsection hereof.
9.10 Section Headings. The section headings contained is in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement.
9.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and such counterparts shall together constitute one and the same instrument.
9.12 Entire Agreement; Binding Effect. This Agreement, including all schedules, exhibits and attachments thereto, embodies the entire understanding and agreement of the parties with respect to the subject matter hereof. This Agreement shall be binding upon and shall inure only to the benefit of the party’s hereto and there respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.
9.13 Governing Law. This Agreement shall be governed by the laws of the State of Florida and the state and federal courts located in Broward County, Florida shall have exclusive jurisdiction of any claim of action filed by either Party. Both parties hereby submit to the jurisdiction of the state and federal courts in the State of Florida. In the event Agent commences litigation against CC and CC prevails in such litigation, CC shall be entitled to receive, from Agent, CC’s reasonable attorneys’ fees and costs incurred. Agent hereunder waives its rights to a trial by jury.
9.14 Survival. All representations and warranties shall survive the execution of this Agreement, Sections 7.2, 9.1 and 9.2 shall survive termination of this Agreement.