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Terms & Conditions

INDEPENDENT SALES REPRESENTATIVE AGREEMENT

This Independent Sales Representative Agreement (this "Agreement") is entered into as of today (the “Effective Date”), by and between 1st Merchant Funding, LLC (“1MF”), a Florida limited liability company, (the "Company"), and agent ("Representative"), who agree as follows:

Definitions.  For purposes of this Agreement, the following definitions apply:
"Advance Amount" means: the “Purchase Price” as set forth in a given Purchase Agreement that is paid by Company to Customer during the Term of this Agreement, which amount was derived from Purchase Agreements that were (i) procured by Representative, which determination is to be made by Company in its reasonable discretion, (ii) submitted by Representative to the Company during the Term, and (iii) in strict accordance with the Company's then-current policies, prices and terms of sale.

"Customer" means any of the current or prospective customers or members of a class of current or prospective customers of Company, and generally includes with limitation those merchants that accept credits cards in payment of goods and services.

"Business" means Company’s purchase of future credit card receivables, and any other products and services as described from time to time on its website, written materials, and other communications to Representative.  Company shall in its sole discretion establish prices and terms with respect to its Business.  The Company may, at its election and at any time, alter or eliminate any of the Business or add items to the Business, or change the applicable prices for any of the Business, by providing Representative with prior notice.

“Services” means Representative’s identification and referral of Customers interested in the Business, including Representative’s assistance to Company’s Customers in completing Purchase Agreements, providing Company with fully and correctly completed Purchase Agreements, obtaining updated Customer information, providing Company with all reasonably required credit information and documentation, and timely submitting completed Purchase Agreements, credit information, voided checks, credit card statements and other required information and documentation.  Representative shall accurately describe the Business to prospective Customers. Representative acknowledges and agrees that the Business is not intended or construed to be, nor shall it to be marketed to prospective Customers as, a loan, financing or similar program.

“Purchase Agreement” means Company’s Future Receivables Purchase and Sale Agreement and submission materials, as modified from time to time in the Company’s sole and absolute discretion.

"Term" means the term of this Agreement, which begins on the Effective Date of this Agreement and terminates on such date in accordance with paragraph 4 below.

“Commission” means that percentage of the Advance Amount as set forth in the attached Schedule A, which percentage the Company may modify from time to time in its sole and absolute discretion.  
Appointment as Independent Representative.

The Company appoints Representative, and Representative agrees to act, as an independent sales representative of the Company and to provide the Services with respect to the Company’s Business.  

Representative shall: (i) perform the Services in a professional manner; (ii) devote such time and attention necessary to render the Services to, and on behalf of, Company; (iii) determine the method, details and means of providing the Services; and (iv) act in furtherance of Company’s best interests.  Representative will obtain and at all times maintain in full force and effect all necessary or desirable licenses, permits, insurance and other authorizations required and will fully observe and comply with all applicable laws.  Company and Representative acknowledge and agree that Representative may perform the Services at times and locations in Representative’s reasonable discretion.  Nothing in this agreement shall prevent Representative from performing other services to third parties so long as such other engagements are disclosed to Company and do not interfere or compete with the performance of the Services, as determined in Company’s sole and absolute discretion.

Nothing contained in this Agreement shall be deemed to create an employment, agency, joint venture, partnership or franchise relationship between the parties hereto.  Each of the parties acknowledges and agrees that Representative is an independent contractor, and not an employee including without limitation, for state and Federal tax purposes, is not an agent of Company and is not entitled to any Company employment rights or benefits accorded to Company’s employees, including, without limitation, employer benefit programs, disability insurance, vacation or sick pay.  The fact that Company may carry workers’ compensation insurance for its own benefit and for the mutual benefit of employees of Company shall not create an inference of employment.  Unless specifically authorized to do so by Company and as counsel for Company, Representative is not authorized to act on behalf of Company.  Company shall not dictate the work hours of Representative but retains the right to monitor the hours worked.  Except as may be required by law, the parties hereby acknowledge and agree that Company shall have no right to control the manner, means, or method by which Representative performs the Services or the location from which Representative performs the Services.  Rather, Company shall be entitled only to direct Representative with respect to the requirements of Company’s Business and the results to be derived by Company, and to review and assess the performance of the Services by Representative for the limited purposes of assuring that the Services have been performed and confirming that such results were satisfactory.  Company shall also be entitled to inspect Services performed, stop any Services in process, and the right to make suggestions or recommendations as to the details of the Services, or to propose modifications to the Services. 

Representative shall be solely responsible for any and all tax obligations of Representative, including, but not limited to, all city, state and federal income taxes, social security withholding tax and other taxes incurred by Representative.  Company shall not withhold income taxes, social security taxes, disability, workers’ compensation or unemployment insurance payments, or any other taxes from the compensation paid to Representative, unless otherwise required by law.  Representative shall pay, when and as due, any and all taxes incurred as a result of Representative’s compensation hereunder, including estimated taxes, and shall provide Company with proof of said payments upon demand.  Representative agrees to indemnify, defend and hold harmless Company and its officers, directors, agents, employees, shareholders, legal representatives, affiliates, successors and assigns, and each of them, from loss, liability, costs, damages or expenses from any and all claims, actions and suits, whether groundless or otherwise, and from and against any and all claims, liabilities, judgments, losses, damages, costs, charges, attorney’s fees, and other expenses of every nature and character by reason of Representative’s breach of this paragraph.

Representative may, at Representative’s own expense, hire assistants and other employees to assist in the performance by Representative of the Business under this Agreement.  Representative shall be solely responsible for all compensation, taxes, insurance, reporting and other obligations incidental to Representative’s use of such assistants and other employees.  Representative agrees to indemnify, defend and hold harmless Company and its officers, directors, agents, employees, shareholders, legal representatives, affiliates, successors and assigns, and each of them, from loss, liability, costs, damages or expenses from any and all claims, actions and suits, whether groundless or otherwise, and from and against any and all claims, liabilities, judgments, losses, damages, costs, charges, attorney’s fees, and other expenses of every nature related to or arising out of any claim, dispute, transaction or proceeding by any of Representative’s employees or assistants.  Representative understands that it shall maintain a contractual relationship with Company and that all rights and duties of Representative’s sales agents under this Agreement are subject to the limitations of the Representative’s agreement with Company.

Compensation. 
The Company shall pay Representative as the compensation set forth in the attached Schedule A, which may be amended prospectively from time to time in the Company’s sole and absolute discretion.

Representative is solely responsible for all expenses incurred by Representative in connection with Representative's duties under this Agreement, and Representative acknowledges that the Company will not reimburse Representative for any such expenses.
Acceptance by Representative of any Commission paid by the Company for a specific sale constitutes a waiver and release of any claims Representative may then have against the Company for that sale.    

Termination.  The Company and Representative may, at either of their election, at any time, and with or without cause, terminate this Agreement by so notifying Representative or Company, as the case may be, in writing, in which event the termination becomes effective immediately.  

Representations and Warranties.  
Representative represents, warrants and covenants that (a) this Agreement will not cause or require Representative to breach any obligation to, or agreement or confidence with, any other person, (b) as of the date of this Agreement (except as disclosed in writing by Representative to the Company prior to the execution of this Agreement), Representative is not (nor, during the Term will Representative be) representing, or otherwise affiliated in any capacity with, any other entities, manufacturers or vendors relating or similar to the Business (c) during the term of this Agreement, Representative will not represent, or otherwise become affiliated in any capacity with, any entities, which, in the opinion of the Company, may be competitive with the Business, and (d) Representative and all of Representative's employees and agents are covered by adequate worker's compensation insurance and Representative's payroll procedures (including the withholding and payment of payroll taxes) are and will remain in accordance with applicable law.  

In performing the Services, Representative warrants, to the best of his/her/its knowledge, that: (i) all of the credit and other information obtained from Customers and any third parties shall be true, genuine, complete and accurate in all respects; (ii)  all of the signatures on behalf of Customers and any third parties shall be true, complete, accurate and genuine in all respects; (iii) each Purchase Agreement shall be duly authorized, executed and delivered by a Customer and related parties thereto; and (iv) Representative represents and warrants that the Company’s Business is permitted under the terms of its existing agreements with its existing credit card processor(s).

Confidentiality.  
Representative acknowledges that the Company has made or may make available to Representative highly confidential customer information concerning: customer identification, lists and contact information; potential customers; customer preferences; customer contacts; customer financial and business information; customer credit reports; customer presentations; customer habits; customer preferences; compensation arrangements; strategic plans and information; other information concerning the identity, needs and desires of actual and potential customers, all of which derive significant economic value from not being generally known to others outside the Company; and other confidential and/or proprietary information of the Company or its customers including without limitation trade secrets and copyrighted materials, and confidential information provided to the Company by the Company’s customers (collectively, all of the items listed above are the “Confidential Material”).  All data, lists and compilations assembled or developed by Representative relating to the Company’s business will also be deemed to be the “Confidential Material” of the Company for all purposes, and Representative hereby assigns all of Representative’s right, title and interest to such Confidential Material (now existing or later developed) to the Company.  Immediately upon request from the Company, Representative will return to the Company all Confidential Material in all forms and formats.  For the purposes of this Section, Confidential Material will not include publicly available information in the same form as maintained by the Company.
During the term of this Agreement and for a period of two (2) years immediately following the termination of this Agreement for any reason, Representative shall not solicit or entice any employee or other independent contractor of Company, to leave Company or to compete directly or indirectly with Company. 

Representative acknowledges that certain information regarding the existing and potential customers of Company is compiled over time through substantial effort and expense of Company and is a confidential trade secret of Company.  Representative agrees not to disclose the identity and preferences of any existing customer of Company to any third party without the prior written consent of Company.  To the extent Company’s customer information is a trade secret, Representative further agrees that for a period of two (2) years immediately following the termination of this Agreement for any reason, Representative shall not in any way divert or take away any of Company’s Customers that executed a Purchase Agreement with the Company.  

Representative shall not charge a Customer any processing, application or funding fee relating to the Business.  This shall not, however, limit in any way Representative’s right to charge fees for products and services provided by Representative that are unrelated to the Company’s Business.  Representative further agrees that, once Representative has received funds from Company, Representative shall not cause, facilitate or influence a Company Customer to switch its credit card processing to a bank or processing network different from the bank or processing network identified in that Customer’s Purchase Agreement, or otherwise adversely affect in any way the Customer’s credit card processing or Company’s receipt of the Specified Amount.
Representative hereby acknowledges that the covenants set forth in this Section 6 are reasonable in all respects and are necessary to protect the legitimate business interests of Company.  Representative certifies that Representative has had the opportunity to discuss this Section 6 with any legal advisor Representative chooses and that Representative understands its provisions and has entered into this Agreement freely and voluntarily.  In the event that any of the provisions of this Section 6 are found to be unenforceable or void (either in whole or in part), then the offending portion shall be construed as valid and enforceable only to the extent permitted by law and the balance of this Section 6 will remain in full force and effect.

LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES. 
COMPANY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, OR ANY OTHER PECUNIARY LOSS) SUFFERED BY REPRESENTATIVE RELATED TO OR ARISING OUT OF THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND/OR FROM ANY OTHER CAUSE WHATSOEVER, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 
EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER, OR EXCLUSION OF DAMAGES, IS EXPRESSLY INTENDED TO BE SEVERABLE AND INDEPENDENT FROM ANY OTHER PROVISION, SINCE THOSE PROVISIONS REPRESENT SEPARATE ELEMENTS OF RISK ALLOCATION BETWEEN THE PARTIES, AND SHALL BE SEPARATELY ENFORCED.
Indemnification.  Representative shall defend, indemnify and hold harmless the Company and its affiliates, agents, officers, employees, shareholders and directors ("Indemnitees") against all Claims (as defined below) and all costs, expenses and attorneys' fees incurred in the defense of any Claims or any action or proceeding brought on any of such Claims.  For purposes of this paragraph, "Claims" means all liabilities, damages, losses, costs, expenses, attorneys' fees and claims arising from (a) any activity, work or thing done, permitted or suffered by Representative or by any agent, employee, officer, representative, or contractor of or retained by Representative, (b) any breach or default in the performance of any obligation, representation, or warranty of Representative under this Agreement, or (c) any negligence of Representative or any agent, employee, officer, contractor, representative, guest, licensee, invitee, visitor or customer of or retained by Representative.  If any action or proceeding is brought against any of the Indemnitees by reason of any such Claims, Representative upon notice from any Indemnitee shall defend such action or proceeding at Representative's sole cost by legal counsel satisfactory to the Indemnitee(s).

The Company's Decisions.  All Purchase Agreements of other aspects of the Company’s Business and services may be at prices and terms established by Company in its sole discretion and Company may establish or modify prices and other terms and conditions of sale.  Representative may not, without the Company's prior written approval, alter, enlarge or limit orders, make representations or guarantees concerning the Company's Business, or accept return of or make any allowance for such Business.  Representative acknowledges that all Purchase Agreements must be approved by Company, that such approval shall be in Company’s sole discretion, and that such approval will become effective only upon issuance by Company of written or electronic confirmation of such approval.  Representative will not make any promise to or create any impression with a prospective Customer that a given purchase will be approved prior to Company’s review and written approval. Representatives shall not make any representations or warranties, verbally or otherwise, to any Customer or third party in contravention of the terms of this Agreement and/or the Purchase Agreement, or take any actions directly or indirectly which modify the terms and conditions of the Purchase Agreement.

Arbitration of Disputes.  Arbitration constitutes the sole and exclusive remedy for the settlement of any dispute or controversy concerning this Agreement or the rights of the parties hereunder, including whether the dispute or controversy is arbitrable.  The arbitration proceeding will be conducted in Miami, Florida, before a single arbitrator under the JAMS Commercial Arbitration Rules (the “Rules”) in effect at the time a demand for arbitration is made.  To the extent there is any conflict between the Rules and this arbitration clause, this clause will govern and determine the rights of the parties.  The decision of the arbitrator, including the determination of the amount of any damages suffered, will be exclusive, final, and binding on all parties, their heirs, executors, administrators, successors, and assigns, as applicable, and judgment thereon may be entered in any court of competent jurisdiction.  The costs of arbitration, including administrative fees, fees for a record and transcript, and the arbitrator's fees, but excluding attorney's fees, will be awarded to the party determined by the arbitrator to be the prevailing party.  
Surviving Terms.  Representative shall continue to adhere to its continuing obligations under this Agreement, including without limitation Sections 5, 6, 7, 8 and 10, which shall survive after Representative’s termination for any reason by either party.
Miscellaneous. 

Further Assurances.  Each party to this Agreement shall execute and deliver all instruments and documents and take all actions as may be reasonably required or appropriate to carry out the purposes of this Agreement.
Modification.  This Agreement may be modified only by a contract in writing executed by the party to this Agreement against whom enforcement of the modification is sought.
Prior Understandings.  This Agreement:  (a) contains the entire and final agreement of the parties to this Agreement with respect to the subject matter of this Agreement, and (b) supersedes all negotiations, stipulations, understandings, agreements, representations and warranties, if any, with respect to such subject matter, which precede or accompany the execution of this Agreement.

Interpretation.  Whenever the context so requires in this Agreement, all words used in the singular may include the plural (and vice versa) and the word "person" includes a natural person, a corporation, a firm, a partnership, a joint venture, a trust, an estate or any other entity.  The terms "includes" and "including" do not imply any limitation.  No remedy or election under this Agreement is exclusive, but rather, to the extent permitted by applicable law, each such remedy and election is cumulative with all other remedies at law or in equity.  The paragraph headings in this Agreement:  (a) are included only for convenience, (b) do not in any manner modify or limit any of the provisions of this Agreement, and (c) may not be used in the interpretation of this Agreement.
Successors-in-Interest and Assigns.  Representative may not voluntarily or by operation of law assign, hypothecate, delegate or otherwise transfer or encumber all or any part of its rights, duties or other interests in this Agreement without the prior written consent of the Company, which consent may be withheld in the Company's sole and absolute discretion.  Any such transfer in violation of this paragraph is void.  Subject to the foregoing and any other restrictions on transferability contained in this Agreement, this Agreement is binding on and inures to the benefit of the successors-in-interest and assigns of each party to this Agreement.

Notices.  Each notice and other communication required or permitted to be given under this Agreement ("Notice") must be in writing.  Notice is duly given to another party upon:  (a) hand delivery to the other party, (b) receipt by the other party when sent by facsimile or email to the address and number for such party set forth below.


If to Company, to:    1st Merchant Funding, LLC
				1135 Kane Concourse, 3rd Floor
				Miami, Florida 33154
				Attn:  ISO Department (support@1stmerchantfunding.com)


If to Representative, to:	____________________
				        ____________________
				        ____________________



Each party shall make a reasonable, good faith effort to ensure that it will accept or receive Notices to it that are given in accordance with this paragraph.  A party may change its address for purposes of this paragraph by giving the other party(ies) written notice of a new address in the manner set forth above.

Waiver.  Any waiver of a default or provision under this Agreement must be in writing.  No such waiver constitutes a waiver of any other default or provision concerning the same or any other provision of this Agreement.  No delay or omission by a party in the exercise of any of its rights or remedies constitutes a waiver of (or otherwise impairs) such right or remedy.  A consent to or approval of an act does not waive or render unnecessary the consent to or approval of any other or subsequent act.
Injunctive Relief.  Each of Company and Represent hereby acknowledge (a) the unique nature of the provisions of this Agreement, (b) that Company will suffer irreparable harm if Representative breaches any of the provisions, and (c) that monetary damages will be inadequate to compensate Company for such breach.  Therefore, if Contractor breaches any provision of this Agreement, then Company will be entitled to injunctive relief (in addition to any other remedies at law or equity) to enforce such provisions.

Drafting Ambiguities.  Each party to this Agreement and its legal counsel has had the opportunity to review and revise this Agreement.  The rule of construction that ambiguities are to be resolved against the drafting party or in favor of the party receiving a particular benefit under an agreement may not be employed in the interpretation of this Agreement or any amendment to this Agreement.
I have read, understand and agree to the above terms and conditions
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