Sales Agents/Resellers

Terms & Conditions

THIS REFERRAL AGREEMENT (“Agreement”) is made as of today (the “Effective Date”) by and between 1st Merchant Funding, LLC (“1MF”), a Florida limited liability company, having its principal place of business at 1111 Kane Concourse Suite 502 Miami, Florida 33154, and WHEREAS, 1MF is in business of purchasing future credit card receivables from qualifying merchants that accept credits cards in payment of goods and services; WHEREAS, Vendor is in the business of developing and marketing merchant bankcard programs, originating merchant relationships, and providing merchant bankcard management services; and WHEREAS, 1MF and Vendor desire to engage in a program (“Program”), subject to the terms and conditions of this Agreement, in which Vendor will refer merchants of Vendor (“Vendor Merchant(s)”) who desire to sell their future credit card receivables, on terms and conditions provided by, and acceptable to 1MF. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration and of the representations, warranties, covenants and agreements hereafter contained, the parties hereto agree as follows: Section 1: Receivables Purchase Program and Origination 1.1 Vendor will actively refer Vendor Merchants to 1MF who desire to sell a portion of their future credit card receivables to 1MF, and shall provide to such Vendor Merchants a copy of 1MF’s form of Receivables Purchase Agreement, related guaranty and application materials (“Receivables Purchase Agreement”). As used in this Agreement, capitalized terms not otherwise defined herein shall have the meanings attributed to them in the Receivables Purchase Agreement. 1.2 Vendor shall assist Vendor Merchants in completing the Receivables Purchase Agreement (except that is shall not complete the blanks in Article II thereof), and shall provide 1MF with fully and correctly completed Receivables Purchase Agreements. Vendor will assist 1MF in obtaining updated information, including but not limited to telephone number or address changes. Vendor will also provide 1MF with all reasonably required credit information and documentation, including but not limited to voided checks and Vendor Merchant credit card statements. The completed Receivables Purchase Agreement, credit information, voided checks, credit card statements and other required information and documentation shall collectively be defined as a “Vendor Merchant Packet”. In delivering each Vendor Merchant Packet, Vendor warrants, to the best of its knowledge, that: (i) all of the credit and other information obtained from Vendor Merchant and any third parties and contained within the Vendor Merchant Packet shall be true, genuine, complete and accurate in all respects; (ii) all of the signatures on behalf of Vendor Merchant and any third parties and contained within the Vendor Merchant Packet shall be true, complete, accurate and genuine in all respects; and (iii) each Receivables Purchase Agreement included within the Vendor Merchant Packet shall be duly authorized, executed and delivered by Vendor Merchant and related parties thereto. A Vendor Merchant Packet may be delivered in electronic format, provided that the originals of such electronic copy be delivered prior to the completion of processing by 1MF. 1.3 1MF shall review each complete Vendor Merchant Packet it receives from Vendor, complete all applicable due diligence, and determine whether it desires to purchase specific Future Receivables of Vendor Merchant. Vendor acknowledges that all purchases of Future Receivables must be approved by 1MF, that such approval shall be in 1MF’s sole discretion, and that such approval will become effective only upon issuance by 1MF of written or electronic confirmation of such approval. Therefore, Vendor and its representatives will not make any promise to or create any impression with a prospective Vendor Merchant that its Vendor Merchant Packet will be approved prior to 1MF’s review and written approval. Vendor and its representatives shall not make any representations or warranties, verbally or otherwise, to any Vendor Merchants or third party in contravention of the terms of this Referral Agreement and/or the Receivables Purchase Agreement, or take any actions directly or indirectly which modify the terms and conditions of the Receivables Purchase Agreement. 1.4 For each Vendor Merchant Packet accepted by 1MF in writing, 1MF shall advise Vendor of the Purchase Price, Specified Percentage and Specified Amount (the “Purchase Terms”) it proposes to insert into Article II of the Receivables Purchase Agreement. Vendor shall consult with Vendor Merchant, and secure either the acceptance or rejection by Vendor Merchant of the Purchase Terms. If such Purchase Terms are not accepted in writing by Vendor Merchant within two (2) days after receipt thereof, then 1MF shall terminate the application process for such Vendor Merchant. If such Purchase Terms are accepted in writing and in timely fashion by Vendor Merchant, then 1MF shall execute and return the Receivables Purchase Agreement to Vendor with the Purchase Terms included, and Vendor shall deliver such agreement to Vendor Merchant. This may be done electronically by 1MF. The Receivables Purchase Agreement, as so delivered by 1MF to Vendor, shall constitute the complete and integrated understanding and agreement of the parties on the subject matter thereof. Each Receivables Purchase Agreement executed and delivered to 1MF under this Agreement shall be duly authorized, executed and delivered by the parties thereto, constitute the valid and binding obligation of such parties, and be fully enforceable in accordance with the terms and conditions set forth therein, except as the enforcement of such documents may be affected by bankruptcy or similar laws affecting creditor rights generally. 1.5 For all Vendor Merchants entering into a Receivables Purchase Agreement with 1MF, Vendor shall provide 1MF, on a daily basis, with electronic copies of such Vendor Merchants’ credit card transactional activity, for so long as any portion of the Specified Amount for that Vendor Merchant remains outstanding. Alternatively, Vendor may provide 1MF with direct log in access to such information, as made available to Vendor by its credit card processor. Section 2: Vendor’s Commission 2.1 In connection with any initial Receivables Purchase Agreement from any “New Vendor Merchant” submitted to and approved by 1MF pursuant to this Agreement, upon the funding by 1MF of its purchase of Future Receivables from such Vendor Merchant, Vendor shall be entitled to receive a commission in an amount equal to the product of (i) applicable percentage set forth on Schedule A hereto, and (ii) the Specified Amount set forth in such initial Receivables Purchase Agreement (“Initial Receivables Purchase Agreement Commission”). For purposes of this Agreement, a “New Vendor Merchant” shall mean a Vendor Merchant who was not active with 1MF within six (6) months prior to referral. 2.2 In connection with any Receivables Purchase Agreement from a Vendor Merchant who has completed a transaction with 1MF pursuant to a prior Receivables Purchase Agreement within six (6) months of such new submission (a “Renewal”), upon the funding by 1MF of its purchase of Future Receivables from such Vendor Merchant pursuant to such Renewal, Vendor shall entitled to receive a commission in an amount equal to the product of (i) applicable percentage set forth on Schedule A hereto, and (ii) the Specified Amount set forth in such Renewal (“Renewal Commission”). 2.3 Commissions will be paid to Vendor within five (5) business days of Vendor Merchant receiving funds from 1MF, either by check sent out or direct ACH deposit to Vendor’s business checking account as indicated below and in the voided check copy attached (ATTACH COPY OF VOIDED CHECK FROM BUSINESS CHECKING ACCOUNT FOR COMMISION DEPOSIT). Section 3: Program Guidelines and Training 3.1 Vendor will faithfully abide by the policies and procedures of 1MF and its designated representatives established from time to time. Vendor acknowledges that 1MF shall have full authority to change the Program (including any materials or agreements utilized in the Program), or any product offered at any time, and any such changes shall have effect upon notice by 1MF to Vendor as to all future Receivables Purchase Agreements. 1MF’s right to change Program and product terms shall include, but shall not be limited to, the adjustment of Vendor’s commission set forth in Section 2; provided, however, that in the event 1MF makes a material change to Vendor’s commission provisions, Vendor may terminate this Agreement by giving written notice within 30 days of 1MF’s notice to Vendor of the change in Vendor’s commission, and Vendor’s notice of intent to terminate shall become effective as a termination of this Agreement ninety (90) days from the date of Vendor’s notice, if properly given and not withdrawn during such ninety (90) day period. 3.2 Vendor will receive initial training on the Program, as well as applicable policies and procedures of 1MF in connection with the promotion and marketing of the Program. Vendor shall use only those marketing and advertising materials either provided by 1MF or approved by 1MF in writing in advance. Vendor shall provide ongoing support to Vendor Merchants for the intended operation of the Program. Section 4: Merchant Rights, Nonsolicitation and Confidentiality 4.1 Vendor agrees and acknowledges that the relationship created by a Receivables Purchase Agreement, as it relates to the right to acquire Future Receivables, shall be owned exclusively by 1MF, and Vendor will act solely in the capacity of a service representative to 1MF, as directed by 1MF. Vendor shall have no right in and to this relationship, beyond its right to receive the commissions set forth in Section 2 above. This preservation of this relationship between 1MF and each Vendor Merchant is critical to 1MF’s continued willingness to allow Vendor to participate in the Program and to collect commissions in respect thereof. 4.2 In furtherance of the foregoing, Vendor agrees, during the term of this Agreement, that it will not, directly or indirectly through its employees, agents, principals, affiliates, subsidiaries, sales persons or any other person or entity, (i) refer merchants to any person or entity that operates a program that is similar to the Program, or that provides services similar to those provided by 1MF under this Agreement, where the intent, expectation and/or result of such referral is that such entity or person will offer or offers such program or services to the merchant, or (ii) engage in or establish any program or service that is similar to those provided by 1MF, (iii) encourage or solicit any Vendor Merchant to terminate its participation in the Program; or (iv) interfere with the business relationship created between 1MF and Vendor Merchant by reason of a Receivables Purchase Agreement. 4.3 Vendor and 1MF each agree that it will not use for its own purposes, will not disclose to any third party, and will retain in strictest confidence all information and data belonging to or relating to the business of the other (including without limitation the terms of this Agreement), and that each party will safeguard such information and data by using the same degree of care and discretion that it uses to protect its own confidential information. All information relating to Vendor Merchants relating to the Program is the confidential Information of 1MF. No party will be obligated to maintain the confidentiality of information: i) it is required to reveal in performing its obligations under this Agreement or under a third party contract; ii) that is or becomes within the public domain through no act of the disclosing party in breach of this Agreement; iii) that was in the possession of the disclosing party prior to its disclosure under this Agreement, and the disclosing party can prove that; iv) that was received from another source that has no restriction on use or disclosure; or v) that is required to be disclosed by state or federal law. 4.4 In the event of a breach of this Section 4, the parties agree that the non-breaching party will suffer irreparable harm, and that the amount of monetary damages would be impossible to calculate. Thus, the non-breaching party will be entitled to injunctive relief in addition to any other rights to which the non-breaching party may be entitled, without the necessity of proof of actual damages. 4.5 If 1MF reasonably believes that Vendor is not complying with its obligations under this Section 4, 1MF or its designee may conduct an audit of Vendor's operations and books and records. All costs relating to any such audit shall be the responsibility of Vendor if any material irregularities or non-compliance are identified by 1MF. If 1MF determines that no such irregularities or non-compliance exist, 1MF shall bear costs of the audit. Section 5: Additional Responsibilities of the Parties 5.1 Vendor shall accurately describe the Program to prospective Vendor Merchants. Vendor acknowledges and agrees that the Program is not intended or construed to be, nor shall it to be marketed to prospective Vendor Merchants as, a loan, financing or similar program. 5.2 Vendor shall not charge a Vendor Merchant any processing, application or funding fee relating to the Program. This shall not, however, limit in any way Vendor’s right to charge Vendor Merchants fees for products and services provided by Vendor that are unrelated to 1MF’s Program. 5.3 Vendor will not use the name, trademarks, service marks or other identifying characteristics of 1MF as part of its firm, trade or corporate name. 5.4 Each party acknowledges and agrees that each is an independent contractor in performing its obligations under this Agreement, and that, unless specifically authorized, neither party is authorized to make any commitment or representation on behalf of the other party. Vendor understands it is not an agent for 1MF and this Agreement does not confer upon it any powers of an agent. 5.5 Vendor and/or Guarantor shall notify 1MF of any name change, change in direct or indirect ownership, structure or control (if an entity), change in address or any other material change to Vendor status, within forty eight (48) hours of such event or occurrence. For purposes of this provision, "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of Vendor, whether through the ownership of voting securities, by contract or otherwise. 5.6 In the event that Vendor or any of its principals file for bankruptcy, or in the event a bankruptcy petition is filed against Vendor or any of its principals, 1MF must be notified within forty-eight (48) hours of such filing. 5.7 Vendor further agrees that, once a Vendor has received funds from 1MF, Vendor shall not cause, facilitate or influence Vendor Merchant to switch Vendor Merchant’s credit card processing to a bank or processing network different from the bank or processing network identified in Vendor Merchant’s Receivables Purchase Agreement, or otherwise adversely affect in any way Vendor Merchant’s credit card processing or 1MF’s receipt of the Specified Amount. Vendor shall monitor the activities of all Vendor Merchants, and advise 1MF immediately if it becomes aware of the occurrence of any Termination Event with respect to a Vendor Merchant, or has reason to believe that such a Termination Event may have occurred or will occur. 5.8 Vendor shall not enter into any contract, whether written or oral, with any other organization or entity (other than with sales persons performing services on behalf of Vendor) to market the Program without 1MF’s prior written consent. Each such entity approved by 1MF must enter into a separate written agreement with 1MF. 5.9 Vendor represents and warrants that the Program is permitted under the terms of its existing agreements with its existing credit card processor. Section 6: Term of the Agreement 6.1 The parties agree that the term of this Agreement shall be one (1) year, commencing on the Effective Date (the “Minimum Term”). To induce 1MF to enter into this Agreement, Vendor agrees that (1) it may not terminate this Agreement during the Minimum Term, and (2) 1MF shall have the right to terminate this Agreement at any time and for any reason (including during the Minimum Term) upon thirty (30) days prior written notice to Vendor. Upon the expiration of the Minimum Term, this Agreement shall be extended for successive thirty (30) day periods and either party may terminate this Agreement upon thirty (30) days prior written notice to the other party. 6.2 Notwithstanding anything to the contrary set forth in Section 6.1, 1MF may terminate this Agreement without prior notice and at any time upon the breach by Vendor of any obligation set forth in Section 4 above, or at any time after Vendor engages in fraud, commits gross negligence, or makes material misrepresentations regarding the Program. 6.3 The rights and obligations of the parties hereunder with respect to Receivables Purchase Agreements originated prior to termination of this Agreement shall survive said termination. 6.4 1MF may assign this Agreement, provided that the assignee fully assumes all the rights and obligations of the assigning party. Vendor may not assign this Agreement, without the prior written consent of 1MF, which may be withheld in its sole discretion. Section 7: Indemnification; Limitation on Liability 7.1 Vendor shall indemnify and hold 1MF free and harmless from and against all claims, damages and lawsuits (including reasonable attorneys’ fees) arising out of or resulting from negligence or willful misconduct of, or material breach of any warranty, representation or covenant contained in this Agreement by, Vendor or its employees, agents, principals, affiliates, subsidiaries, sales persons or any other person or entity in each case, other than claims, damages and lawsuits relating to the negligence or willful misconduct of 1MF or its employees, agents, principals, affiliates, subsidiaries, sales persons or any other person or entity, or 1MF’s breach of its obligations pursuant to this Agreement. 7.2 In no event shall one party be liable to the other for any special, incidental, consequential, indirect or punitive damages. 7.3 All losses incurred by 1MF attributable to Vendor Merchants will be borne by 1MF; provided, however, that Vendor will be liable to 1MF for all losses, fines, fees and expenses arising out of Vendor’s fraud, gross negligence, or failure to comply with the terms of this Agreement. Section 8: Miscellaneous 8.1 Vendor and Guarantor(s) each hereby authorize inquiry into his/her personal and business financial information, including, but not limited to, banking relationships, consumer reports, and credit bureaus, and authorize inquiry into his/her personal history including investigation of all criminal and civil matters. 1MF reserves the right to report a statement to Dun and Bradstreet, to notify Credit Reporting Agencies of Vendor’s or Guarantor’s default under this Agreement, and to alert any third party of any incidences of default under this Agreement. 8.2 This Agreement shall be governed by and is executed under the laws of the State of Florida. Any legal action, suit or proceeding arising out of or relating to the Referral Agreement or the Guaranty below, or the transactions contemplated hereby or thereby, may be instituted in any state or federal court of competent subject matter jurisdiction in the State of Florida. Vendor and Guarantor(s) each hereby knowingly and voluntarily consent to personal jurisdiction in the courts of the State of Florida with respect to any such legal action, suit or proceeding. Vendor and Guarantor(s) each hereby irrevocably consent to the service of process of any of the aforementioned courts in any such action, suit or proceeding, by certified United States mail, postage prepaid, to him/her at the address set forth below. Vendor and Guarantor(s) each hereby knowingly and voluntarily waive any claim or defense in any action, suit or proceeding commenced in the Florida State Court or the United States District Court for the District of Florida asserting that it/he/she is not subject personally to the jurisdiction of such court, that service upon it/him/her as hereinabove set forth is invalid, that it/his/her property is immune or exempt from attachment or execution, that the action, suit or proceeding is brought in an inconvenient forum, that the venue of the action, suit or proceeding is improper or that the Referral Agreement or the Guaranty, or the subject matter hereof, may not be enforced in or by such court. 8.3 All notices provided in this Agreement shall be in writing and deemed given when mailed or faxed to Vendor or 1MF at their respective addresses set forth above, or at such other address as a party shall designate in a notice to the other party, if sent by registered or certified mail, return receipt requested, or when actually received if given in any other manner. 8.4 The undersigned, jointly and severally, hereby unconditionally guaranty, without deduction or diminution by reason of counterclaim, offset or defense, and in accordance with all terms and conditions of this Agreement, including any and all modifications, additions, supplements and amendments thereof that all information provided and contained in this Agreement is true and correct and that signor has full and complete authority to enter into this Agreement on behalf of Vendor. 8.5 This Agreement, when executed by both 1MF and Vendor, shall constitute the entire Agreement between the parties on the subject matter hereof, and shall supersede and cancel all prior offers and negotiations, whether in writing or otherwise with respect to such subject matter. No amendment or modification of this Agreement shall be effective unless in writing and duly executed by all parties hereto. In witness whereof, each of the parties has caused this Agreement to be executed as of today, and IP address will be obtained and stamped as a digital signature to this agreement. By signing below, Guarantor(s) each assume and guaranty all of Vendor’s obligations under the Referral Agreement, including, without limitation the obligation of Merchant to indemnify 1MF pursuant to Section 7 thereof. This guaranty is unlimited, absolute and without condition, and is binding upon Guarantor(s), his/her heirs, legal representatives, successors and assigns. Guarantor(s) each waive any and all rights to require 1MF or any other indemnitee to proceed against Vendor before taking action against him or her. GUARANTOR(S) EACH ACKNOWLEDGE HAVING READ THE TERMS OF THE REFERRAL AGREEMENT AND THIS GUARANTY, AND HIS/HER SIGNATURE BELOW SHALL SERVE AS CONFIRMATION THAT HE/SHE UNDERSTANDS ALL OF THE TERMS AND CONDITIONS OF THE REFERRAL AGREEMENT AND OF THIS GUARANTY. GUARANTOR(S) EACH ACKNOWLEDGE RECEIVING A COPY OF THE REFERRAL AGREEMENT, THAT HE/SHE HAS HAD THE OPPORTUNITY TO REVIEW THE REFERRAL AGREEMENT AND THIS GUARANTY WITH COUNSEL OF HIS/HER CHOICE, AND THAT HE/SHE RECEIVES SUBSTANTIAL BENEFITS AS A RESULT OF THE REFERRAL AGREEMENT.
  I have read, understand and agree to the above terms and conditions*.