Affiliates - Service Agreement
PAY-IT ONLINE, LLC INDEPENDENT REFERRAL AGENT AGREEMENT
This Independent Referral
Agent Agreement (hereinafter the “Agreement”) is made and entered into as of
____________ by and between Pay-It Online, LLC Inc., a California company, with
its principal office located in Calabasas, CA (hereinafter the "Company"), and
_____________________________, with its principal office located at
_________________________________________________________ (hereinafter the
"Agent").
RECITALS
WHEREAS, Company is an
authorized sales agent for Cardservice International (hereinafter “Cardservice”)
and is engaged in the business of providing on-line credit card processing via
Cardservice; and
WHEREAS, Company desires to
select Agent as a non-exclusive Agent to provide Company with Merchant
referral’s for Company’s on-line credit card processing services (hereinafter
the “Services”).
WHEREAS, Agent desires to
accept such designation and to perform all the provisions of this Agreement.
In consideration of the
matters described above, and of the mutual benefits and obligations set forth in
this Agreement, the parties agree as follows:
SECTION ONE.
REFERRAL TERRITORY
Agent shall have the right
to advertise the Company’s Services to any Merchant (hereinafter the “Merchant”)
requiring Company’s services.
SECTION TWO.
REFERRAL INFORMATION
Agent shall use its best
effort to provide Company with viable referral information about potential
Merchants interested in using Company’s Services (hereinafter the “Referral”).
SECTION THREE.
ACCEPTANCE OF REFERRAL ORDER
A.
All Referrals are to be forwarded to Company for evaluation. No
referrals shall constitute a binding obligation upon Company until Cardservice
and Merchant have entered into a binding Credit Card Processing Agreement.
Company reserves the right to reject any Referral, for whatever reason it may
deem appropriate, without obligation to Agent for commission.
B.
Any requests for formal bids, quotations and/or rates will be furnished
by Company.
C.
The authority of Agent shall be strictly limited to the procurement of
Merchant’s information.
D.
Agent shall not use the Company’s name or any modification or derivations
thereof, or any logos or trademarks associated therewith without the prior
written approval of Company, and only in such form and style approved by
Company.
SECTION FOUR
COMMISSIONS
A.
Company shall pay to Agent a monthly commission on revenue received by
the Company, for all Merchants, which were originally referred by Agent,
according to Company’s Commission Schedule attached hereto and incorporated by
this reference as Exhibit “A,” which Commission Schedule may be modified,
at the exclusive discretion of Company, with thirty (30) days written notice to
Agent.
B.
Commissions shall be paid to Agent monthly. No commissions shall be due
or payable until Company receives payment from Cardservice. Commissions will
only be paid in months when the amount owed to Agent exceeds $25. If the amount
owed to Agent is less than $25, the balance will be carried forward until such
time as the balance exceeds $25.
C.
If this Agreement is terminated, Agent shall be entitled to the
applicable commissions on all Merchants accepted by Cardservice prior to the
date of termination. Such commissions will not be paid until payment is received
by Company from Cardservice.
D.
Any change in the amount of commissions payable to Agent under this
Agreement shall be made by Company with prior written notice to Agent.
SECTION FIVE.
AGENT'S RESPONSIBILITIES
A.
Agent shall exert his or her best efforts to aggressively promote the
Services to all Merchants within the above-specified territory.
B.
Agent shall be solely responsible for insuring that the source of the
Referral is acknowledged by Company.
SECTION SIX
EXPENSES
Agent shall pay all of his
or her own expenses in connection with the solicitation of Referrals under this
Agreement. The only obligation of Company is to pay the applicable commission
specified in this Agreement.
SECTION SEVEN
COMPANY RESPONSIBILITY TO
AGENT
Company shall furnish the
following information and assistance to Agent:
A.
Provide Agent with a monthly summary of Merchant’s activity who were
referred by agent, in such form as may be reasonably necessary to enable Agent
to determine the commission payable to Agent pursuant to the provisions in
Section Four.
SECTION EIGHT
CONFIDENTIALITY
A.
Agent hereby acknowledges and agrees that, in the course of fulfilling
its obligations hereunder, Agent may have access to information or material that
is commercially valuable to the Company and not generally known in the industry
(hereinafter the “Confidential Information”). Confidential Information
includes, without limitation: (i) any and all versions of proprietary computer
software and any documentation related thereto; (ii) technical information
concerning products and services, including product data and specifications,
know‑how, formulae, diagrams, flow charts, drawings, source code, object code,
program listings, test results, processes, inventions, research projects and
product development; (iii) any and all versions of any designs, patents,
trademarks or copyrightable works, discoveries, formulae, processes,
manufacturing techniques, trade secrets, inventions, improvements, ideas,
business plans; (iv) information concerning each Company’s business, including
cost information, profits, sales information, accounting and unpublished
financial information, business plans or strategies, markets and marketing
methods, Merchant lists and Merchant information, sponsor lists and sponsor
information, purchasing techniques, supplier lists and supplier information and
advertising strategies; (v) information concerning employees, including
salaries; (vi) information submitted by each party’s Merchants, suppliers,
employees, or co‑venturers for study, evaluation or use; or, (viii) any other
information not generally known to the public or by actual or potential
competitors of Company, which, if misused or disclosed, could reasonably be
expected to adversely affect either party’s business.
B.
Agent acknowledges and agrees that: (i) all Confidential Information of
Company is the sole and exclusive property of Company and is regularly used by
Company in the operation and conduct of its respective business, and that the
unauthorized disclosure or use of Confidential Information would have a material
adverse effect on the business, operations and competitive position of Company
whose information was thus disclosed; (ii) Agent will at any time divulge to any
person or entity, orally or in writing, directly or indirectly, in whole or in
part, any Confidential Information, without Company’ explicit prior written
consent; (iii) Agent will use, or cause to be used, either directly or
indirectly, the Confidential Information in any manner which competes,
circumvents or otherwise interferes with the business of the Company in a manner
which is outside of the scope of this Agreement; (iv) Agent will receive and
maintain all Confidential Information in strictest confidence using reasonable
care; (v) that any violation or breach of this Agreement may result in
significant and irreparable injury, that a remedy at law may be inadequate, and
that, in the event of any such violation or breach, the Company, in addition to
any other relief to which it may be entitled, shall in addition be entitled to
temporary and permanent injunctive relief.
SECTION NINE
TAXES
Each party shall report and
pay all taxes imposed on its revenues or income by any state or jurisdiction.
SECTION TEN
DURATION
A.
This Agreement shall become effective on as stated above, and shall
remain in effect until terminated by either party or unless terminated for
breach or as provided in this Agreement.
B.
This Agreement may be terminated either by mutual Agreement of Agent and
Company, or by written notice of either of the parties to the other party of an
intention to terminate the Agreement. Any such written notice shall serve
automatically to terminate this Agreement two (2) days after the date such
notice is sent to the other party via certified or registered mail.
SECTION ELEVEN
EFFECT OF TERMINATION
A.
Payment for any services rendered, or any obligations owed at the time of
termination or which become owed under this Agreement, whether or not such
obligations arise prior to or after the termination date shall survive
termination of this Agreement.
B.
Agent shall continue to receive monthly commission pursuant to the terms
in Section 4 unless this Agreement is terminated for any material default by
Agent with respect to any of the terms and conditions contained herein. Only
commission amounts in excess of twenty-five dollars ($25) a month will continue
to be paid on an ongoing basis.
C.
Upon termination, Agent shall return to Company all marketing materials,
sales materials, rate schedules, Merchant lists, or any other material or
Company property in its possession at the time of termination. Agent shall
discontinue to use all names and logos of Company, its affiliates and
subsidiaries after termination.
SECTION TWELVE
ASSIGNMENTT
Company may assign all or
any of its rights and duties under this Agreement without the consent or
approval of Agent. Agent may transfer or assign its rights pursuant to the
provisions in Section Two, subject to the prior written consent of Company,
which consent Company may withhold or condition at its sole and absolute
discretion.
SECTION THIRTEEN
REPRESENTATIONS AND
WARRANTIES OF AGENT
A.
Agent represents and warrants to Company that 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 the terms and
conditions contained herein, and no provision hereunder 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 Agent is bound.
SECTION FOURTEEN
INDEMNIFICATION
Agent does hereby agree to
defend, indemnify, and hold Company, and its respective employees, equity
holders, officers, agents, Agents, subsidiaries, and affiliates harmless from
and against any and all claims, losses, damages, costs and expenses (including
reasonable attorneys' fees, whether incurred before or after the entry of
judgment), claims, lawsuits, liens, judgments, penalties, and any other
liabilities of any kind whatsoever, whether alleged or actual, arising out of
performance of Agent's obligations under this Agreement.
SECTION FIFTEEN
GENERAL PROVISIONS
A.
Parties
relationship.
Company and Agent acknowledge and agree that Agent is an independent contractor,
and is not an employee of Company. No partnership or joint venture is created
by this Agreement. Agent shall acquire any interest in the business of Company
by virtue of this Agreement.
B.
Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of California.
C.
Further
Assurances. Each
party to this Agreement shall execute all instruments and documents and take all
actions as may be reasonably required to effectuate this Agreement.
D.
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one document.
E.
Time of
Essence. Time
and strict and punctual performance are of the essence with respect to each
provision of this Agreement.
F.
Attorney's
Fees. In the
event any dispute arises between the parties hereto to enforce or interpret the
provisions of this Agreement, the prevailing party in such action shall be
entitled to recover from the other party all reasonable costs, expenses,
attorney's fees and costs actually incurred relating to or arising from such
action.
G.
Modification.
This Agreement may be modified only by a contract in writing executed by the
party(ies) to this Agreement against whom enforcement of such modification is
sought.
H.
Headings.
The headings of the sections of this Agreement have been included only for
convenience, and shall not be deemed in any manner to modify or limit any of the
provisions of this Agreement, or be used in any manner in the interpretation of
this Agreement.
I.
Prior
Understanding.
This Agreement contains the entire Agreement between the parties to this
Agreement with respect to the subject matter of this Agreement, is intended as a
final expression of such parties' Agreement, is intended as a complete and
exclusive statement of the terms of such Agreement, and supersedes all
negotiations, stipulations, understandings, Agreements, representations and
warranties, if any, with respect to such subject matter, which precede the
execution of this Agreement.
J.
Interpretation.
Whenever the context so requires in this Agreement, all words used in the plural
(and vice versa), each gender shall be construed to include any other genders,
and the word "person" shall be construed to include a natural person, a joint
venture, a trust, an estate or any other entity.
K.
Partial
Invalidity. Each
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law. If any provision of this Agreement or the application of such
provision to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected by such invalidity or
unenforceability, unless such provision or such application of such provision is
essential to this Agreement.
L.
Successors-in-Interest and Assigns.
Subject to any restriction on transferability contained in this Agreement, this
Agreement shall be binding upon and shall inure to the benefit of the
successors-in-interest and permitted assigns of each party to this Agreement.
Nothing in this Paragraph shall create any rights enforceable by any person not
a party to this Agreement, except for the rights of the successors-in-interest
and assigns of each party to this Agreement, unless such rights are expressly
granted in this Agreement to other specifically identified persons.
M.
Waiver.
Any waiver of a default under this Agreement must be in writing and shall not be
a waiver of any other default concerning the same or any other provision of this
Agreement. No delay or omission in the exercise of any right or remedy shall
impair such right or remedy or be construed as a waiver. A consent to or
approval of any act shall not be deemed to waive or render unnecessary consent
to or approval of any other or subsequent act.
N.
Notices.
Notices under this Agreement shall be deemed effective upon receipt, if
delivered by messenger, facsimile or overnight courier, and if by regular US
mail, on the 3rd day following deposit in the US mail, postage
prepaid. All notices shall be sent as follows:
If to
Company:
PAY-IT ONLINE, LLC
INC.
23371
Mulholland Drive
Suite 108
Woodland
Hills, CA 91364
IN WITNESS WHEREOF, the
parties have executed this Independent Referral Agent Agreement on the date
first above written
PAY-IT
ONLINE, LLC
A
California Corporation
_______________________
By: Russell Gottlich
Its: CEO
REFERRAL AGENT:
______________________________________
______________________
By:
Its:
Exhibit “A”
Commission
Schedule
Merchant
Account Credit Card Processing:
25% of total
collected monthly merchant account fees
Payment Gateway
Fees:
25% of net
payment gateway setup fees and net monthly fees collected
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