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1. Referrals. Referral Entity will refer prospective merchants to National Processing for possible participation in National Processing’s bankcard and ACH transaction processing program (the “Program”). Each such merchant referred to National Processing by Referral Entity will be referred to hereinafter as a “Referred Merchant.” Referral Entity may provide Referred Merchants with written materials (or online information) about National Processing or the Program which have either been provided or approved in advance by National Processing (all marketing materials developed for this program will be mutually approved by both parties). Upon National Processing’s request, Referral Entity will use its reasonable efforts to assist National Processing in making additional contact or solicitation of the Referred Merchants. At the minimum, Referral Entity will provide to National Processing the name, address, phone number and contact name of the Referred Merchant. National Processing is under no obligation to consider any Referred Merchant into the Program and any Referred Merchant is subject to National Processing’s approval or rejection as National Processing in its sole discretion deems appropriate. National Processing and approved Referred Merchants shall enter into agreements for transaction processing (each a “Merchant Agreement”).
2. Referral Fees. National Processing shall pay to Referral Entity referral fees (“Commissions”) during the term of this Agreement equal to the percentage of Net Revenue (as defined below) finally paid to and received by National Processing from Boarded Merchants (as defined below) based on the qualifying tier (silver, gold or platinum) applicable for Referral Entity. If (i) National Processing, its affiliates or one of their respective independent sales channels have an existing relationship under a valid Merchant Agreement with a Referred Merchant, or (ii) National Processing, its affiliates or one of their respective independent sales channels is then actively engaged in negotiations with a Referred Merchant, as evidenced by a proposal, merchant application, or other such formal offer(s) to do business, prior to the date such Referred Merchant is referred by Referral Entity to National Processing, then such merchant will not be considered a Boarded Merchant under this Agreement for which Commissions will be paid to Referral Entity. For purposes of this Agreement, (i) “Boarded Merchant” means a Referred Merchant who signs a Merchant Agreement and begins a processing account with National Processing within six months of its referral by Referral Entity, and (ii) “Net Revenue” means, for any period of time, any and all processing and other fees and charges received by National Processing with respect to Boarded Merchants less interchange, assessments, processing costs, and any and all costs, expenses and losses (including, without limitation, chargebacks, returns, negative deposits (unfunded customer credits), and losses relating to merchant fraud, unauthorized security breaches and payment brand fines and penalties) attributable to such Boarded Merchants by National Processing. Referral Entity is not entitled to any other compensation for referrals except as stated in this paragraph. Referral Entity’s monthly compensation amount must exceed $50.00 in order to be processed.
3. Payment of Commissions. Commissions will be paid to Referral Entity within thirty (30) days from the end of the month in which the processing occurred as calculated by National Processing. Referral Entity will receive Commissions for as long as National Processing receives revenues attributable to Boarded Merchants; provided, however, that Commissions will immediately cease if this Agreement is terminated by National Processing due to an Event of Default (as defined below), or, if after termination of this Agreement, Referral Entity breaches Sections 9 or 10. Referral Entity must promptly examine all statements and reports related to its compensation as sent by National Processing and notify National Processing in writing of any asserted error(s) within thirty (30) days following the date of such statements and reports. After such period, Referral Entity will be deemed to have accepted such statements and reports as delivered.
4. Processing. National Processing will work closely with Referral Entity to meet the needs of the Boarded Merchants, and will deal with all pricing and fee issues with flexibility and concern for the Referral Agreement Page 1 of 6 Confidential protection of their relationship with Referral Entity. Each Boarded Merchant will have its own Merchant Agreement that sets forth in detail the rates and fees for that merchant. In the event of conflict between this Agreement and any Merchant Agreement, the Merchant Agreement shall control with respect to such Boarded Merchant.
5. Representations and Warranties. Referral Entity represents and warrants to National Processing that that the referral by Referral Entity of a merchant to enter into a Merchant Agreement with National Processing is not prohibited by or in breach or violation of any agreement to which Referral Entity is a party and is not in breach of any obligation or duty owed to any other person or entity. In the event Referral Entity accesses National Processing’s systems by establishing or supporting any interface or connectively thereto, Referral Entity represents and warrants to National Processing that its products and services comply with all applicable (i) rules, regulations, operating procedures, guidelines, specifications, and requirements as may be promulgated or amended from time to time (the “Rules”) of the payment brands, including but not limited to the Payment Card Industry Data Security Standard (“PCI DSS”) as promulgated by the Payment Card Industry Security Standards Council, and the specifications and best practices of EMVCo. (“EMV Specifications”), and (ii) all Laws. Without limiting the foregoing, in the event that any of Referral Entity’s products or services are not in compliance with the Rules or the Laws, Referral Entity will bring such products or services into compliance as soon as commercially possible.
6. Compliance With Laws. Each party will comply with all Laws and Rules which are applicable to the performance of such party’s obligations under this Agreement.
7. Term and Termination. The initial term of this Agreement will be three (3) years (“Initial Term”) and will renew automatically thereafter for one (1) year terms (each, a “Renewal Term”) unless either party gives written notice of termination at least sixty (60) days prior thereto. Either party may terminate this Agreement as follows (each, an “Event of Default”): (i) any representation or warranty made by either party proves to have been false or misleading in any material respect as of the date made, or becomes false or misleading at any time, (ii) either party fails to observe any material obligation specified in this Agreement, and such failure is not cured within 30 days of receipt of written notice from the non-breaching party, or (iii) either party engages in fraud or any act or omission that may damage the reputation, business, or goodwill of the other party. National Processing may terminate this Agreement immediately upon notice (A) should any payment brand determine that the activities of Referral Entity are those of an Independent Sales Organization or Member Service Provider, or (B) if required by its member bank, a payment brand or by law to terminate this Agreement. Following any termination of this Agreement, all materials and other tangible objects containing or representing Confidential Information (as defined below) which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of such party and shall be promptly returned to such party. As used in this Agreement,
8. Relationship. The relationship of National Processing and Referral Entity is that of independent contractors only. Nothing in this Agreement or in the course of the dealing of the parties shall be construed to constitute the parties hereto as partners, joint venturers or as agents or employees of one another or as authorizing either party to obligate or in any way bind, contractually, in liability or otherwise, the other in any manner whatsoever.
9. Non-Solicitation. Referral Entity acknowledges and agrees that during the term of this Agreement and for a period of five (5) years after termination of this Agreement (including any extensions or renewals hereof), Referral Entity will not directly or indirectly solicit any Boarded Merchant, for the purpose, directly or indirectly, of providing or receiving bankcard services or other services that are the same as or similar to those services provided by National Processing during the term of this Agreement, including but not limited to the processing of and facilitating the payment of charges for the purchase of goods or services, without the prior written consent of National Processing.
10. Confidentiality. The parties acknowledge that each may disclose or learn proprietary, secret or confidential information or data relating to the other party and their respective operations, employees, Referral Agreement Page 2 of 6 Confidential products or services, customers or potential customers (“Confidential Information”) during the course of this Agreement and in connection with the transactions contemplated hereunder. The party receiving the Confidential Information agrees to hold all such information in the strictest of confidence, and to not use or disclose or sell such information for any purpose whatsoever without the prior written consent of the disclosing party.
11. Trademarks. Subject to the limitations in this Agreement, National Processing grants Referral Entity the nonexclusive right and license to use National Processing’s trademarks (the “Trademarks”), as provided from National Processing to Referral Entity, during the term of this Agreement solely in conjunction with referring clients to the Program. Notwithstanding the foregoing, prior to use of any Trademarks on Referral Entity’s website or through any other electronic media, Referral Entity must submit a copy of the website page or other proposed usage to National Processing for its review and written approval. Referral Entity agrees to make any changes requested by National Processing, and acknowledges that National Processing has the right to withhold its consent to use of Trademarks on Referral Entity’s website or other electronic media outlets. National Processing grants no rights in the Trademarks or in any other trademark, trade name, service mark, business name or goodwill of National Processing except as licensed hereunder or by separate written agreement of the parties. Referral Entity agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to National Processing (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). During the term of this Agreement, Referral Entity agrees not to use any trademark, trade name or product name confusingly similar to a trademark, trade name or product name of National Processing, except for the Trademarks expressly licensed hereunder. Upon expiration or termination of this Agreement, Referral Entity will immediately cease all display, advertising and use of all of the Trademarks and will not thereafter use, advertise or display any trademark, trade name or product designation which is, or any part of which is, similar to or confusing with any Trademark or with any trademark, trade name or product designation associated with National Processing or the Program.
12. Right of Set Off. National Processing shall have the right of setoff against any funds owing from National Processing to Referral Entity for any obligation of Referral Entity to National Processing. This right of offset may be exercised by National Processing at any time and without notice to Referral Entity.
13. Indemnification. Referral Entity agrees to indemnify and hold National Processing and its respective stockholders, directors, officers, advisors, consultants, subsidiaries and affiliates (collectively, “Indemnified Parties”) harmless from and against, and to promptly reimburse the Indemnified Parties for, any and all claims incurred by such Indemnified Parties arising from or relating to any breach of any representation or warranty or the non-fulfillment of any obligation, undertaking, covenant or agreement of Referral Entity under this Agreement.
14. Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NATIONAL PROCESSING SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE, AND/OR NON- INFRINGEMENT ARISING OUT OF OR RELATED TO THIS AGREEMENT.
15. Limitation of Liability. NEITHER NATIONAL PROCESSING NOR ANY OFFICER, EMPLOYEE, DIRECTOR OR ANY OTHER REPRESENTATIVE OF NATIONAL PROCESSING SHALL BE LIABLE TOWARDS REFERRAL ENTITY OR TOWARDS ANY THIRD PARTY, UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, STATUTORY, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES. NATIONAL PROCESSING’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY REASON SHALL NOT EXCEED $5,000 IN THE AGGREGATE.
16. Notices. Any notices, request, consent, waiver or other communication required or permitted to be given under this Agreement shall be effective only if in writing and delivered by email to the email address set forth below. If email notice is followed by a copy delivered in one of the following manners, the email notice will be effective upon receipt. If email notice is not followed by any other copy, then it will not be effective unless the sender receives acknowledgment of receipt from the recipient, which acknowledgment shall not include any machine-generated automatic reply. Copies of any communications may be sent (a) in person, (b) by United States mail, certified or registered, with return receipt requested, (c) by national overnight carrier with record of successful delivery retained (e.g., FedEx or UPS), or (d) by facsimile with record of successful transmission retained. Copies delivered by facsimile will not be effective unless the sender retains confirmation of successful transmission. Notices shall be delivered to the following addresses:
17. Mutual Cooperation. The parties agree to cooperate with each other to implement the purpose of this Agreement and in carrying out their respective obligations.
18. Survival. All agreements that by their context are intended to survive the termination of this Agreement will survive termination of this Agreement.
19. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES). THE PARTIES HEREBY CONSENT TO THE SOLE AND EXCLUSIVE JURISDICTION TO THE STATE AND FEDERAL COURTS LOCATED IN UTAH COUNTY, UTAH FOR ANY DISPUTE ARISING OUT OF THIS AGREEMENT.
20. Entire Agreement; Waivers. This Agreement constitutes the entire agreement between the parties as to the subject matter hereof. Unless otherwise specifically provided in this Agreement, a modification, amendment or waiver of any provision of this Agreement shall be effective only when the same shall be in writing and signed by a duly authorized officer of each of the parties, and only in the specific instance and for the purpose for which given. Neither failure or delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver of such right, nor shall any single or partial exercise of any such right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege.
21. Assignment. Neither party can assign this Agreement without the prior written consent of the other party, provided that National Processing may assign this Agreement to its affiliates or a purchaser of all or substantially all of its assets without such consent. In the event National Processing sells its interests in Boarded Merchants to a third party purchaser, National Processing will require that any successor-in- interest to National Processing’s obligations under this Agreement continue to perform its obligations under this Agreement, including the obligation to pay Referral Entity its Commissions as provided herein.
22. Severability. Any provision of this Agreement which is for any reason prohibited or found or held invalid or unenforceable by any court or governmental agency shall be ineffective to the extent of such prohibition or invalidity or unenforceability, without invalidating the remaining provisions hereof in such jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction.
23. Binding Effect. This Agreement shall be binding upon and inure to the benefits of the parties hereto, their respective successors and assigns.
24. Multiple Counterparts. This Agreement may be executed in the original or by facsimile and/or in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.