SOLUTION PROVIDER AGREEMENT
WHEREAS SP wishes to market business and financial services and products of ACHQ; and
WHEREAS ACHQ wishes to retain the services of SP in marketing ACHQ business and financial services (“ACHQ Services”): and
WHEREAS ACHQ means ACHQ, Inc., its subsidiaries, assigns and its other trade names; and
WHEREAS “Vendor” shall mean any bank, service provider or supplier to ACHQ.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
“ACH” means Automated Clearing House- electronic crediting and debiting of funds
“Agreement” means this Agreement including attached schedules and amendments as may exist
“Compensation” means the amounts paid to ACHQ by SP for ACHQ Services
“Confidential Information” has the meaning as set forth in section 5.01
“SP” means Solution Provider- software provider, vendor, or sales organization
“ODFI” means Originatory Depository Financial Institute
“Merchant” means any business prospected or contracted to accept ACHQ Services
“Merchant Agreement” means the agreement between ACHQ and Merchant for processing of ACH transactions
“Merchant Application” means the application completed by Merchant for consideration by ACHQ
“Merchant Services” means the program which enables Merchants to accept ACH payments
“MSP” means a company that provides Merchant Services on behalf of acquirer
“Rules” means the rules as set forth from time to time by NACHA, ODFI and ACHQ that must be adhered to by SP
“Services/ACHQ Services” means services provided by ACHQ to merchants
“ACHQ” means ACHQ, Inc, its subsidiaries, and assigns
“Vendors” means third parties contracted with ACHQ to provide ACHQ Services to Merchants and shall include Acquirers, Third Party Processors, other MSPs, vendors of transaction services, payment services, financing, leasing, software and hardware utilized in the fulfillment of the Services
SECTION ONE – MARKETING ACHQ SERVICES
1.01. Appointment. Subject to the terms of this Agreement, ACHQ hereby appoints SP and grants SP a non-exclusive, non-transferable right to market ACHQ Services to bona fide businesses and organizations (“Merchants”). SP shall use commercially reasonable efforts to fulfill its duties under this Agreement; identify prospective Merchants that meet ACHQ’ and ACHQ’ Vendors’ criteria as shall be identified in ACHQ or Vendor’s policies and training materials; and provide continued service to Merchants in accordance with policies and procedures set forth by ACHQ and its Vendors. SP authorizes ACHQ, at ACHQ’ sole expense, to conduct any necessary background investigations needed to appoint SP.
1.02. Acceptance of Merchants. SP shall instruct Merchants to prepare all documentation reasonably required by ACHQ for ACHQ to accept or decline Merchants’ for ACHQ Services, acceptance thereof subject to the sole discretion of ACHQ. SP shall promptly notify ACHQ in writing of any adverse information that SP learns relating to a Merchant’s financial or other condition which may have a material effect on Merchant’s ability to conform to the terms of its agreements.
1.03. ACHQ Services Agreement. SP shall present Merchants with the current form of ACHQ Application and Agreement that has been supplied to SP by ACHQ. SP shall not make any changes or modifications to any ACHQ Application and Agreement without the prior written consent of ACHQ. ACHQ reserves the right to amend or change in any manner the agreements between Merchants and ACHQ and its Vendors, to be used by SP, including changes to any and all fees due from Merchants, provided ACHQ gives a 30-day advance notice.
1.04. Solution Providers. The relationship of ACHQ and SP is that of an independent Solution Providers. SP nor SP’s employees, contractors, and sales reps are not partners, employees, or joint venture partners of ACHQ, nor do they have any authority to bind ACHQ by contract or otherwise to any obligation. SP will not represent to the contrary, expressly, implicitly, or otherwise.
1.05. Compliance with Rules, Laws and Marketing Materials. SP and ACHQ agree to comply with the rules and regulations of: (i) Visa, MC, Discover, American Express, Debit networks and all other such organizations; (ii) Local, state or federal authorities having jurisdiction over the activities of ACHQ or SP; and (iii) NACHA Rules for ACH Processing (Collectively the “Rules”). In the event of any inconsistency between any provision of this Agreement and the Rules, the Rules shall govern. SP may use its own marketing materials; however, content and verbiage must comply with these rules.
1.06. SP Covenants. SP will: (a) conduct all SP’s business in an ethical manner that reflects favorably on the ACHQ Services, and ACHQ’ good name, good will and reputation (b) avoid deceptive, misleading or unethical practices detrimental to ACHQ or Merchants (c) make no false or misleading representations of the ACHQ Services whether written or oral; (d) not establish, maintain, or take ownership in any other business with the intent to circumvent the terms of this Agreement. (e) During the term of this Agreement, any renewal periods, and after the term of this Agreement in which SP receives Compensation, SP agrees that SP shall act to retain Merchants provided by SP to ACHQ. SP shall be accessible to Merchants, provide timely responses to any inquiries by Merchants. All merchant inquiries may be directed to a previously established ACHQ support channel.
1.07. Use of the Marks. SP may use the trademarks and service marks of ACHQ in promoting the ACHQ Services in conformance with the Rules subject to the sole discretion and approval of ACHQ. Upon termination of this Agreement, SP agrees that it shall no longer use these trademarks and services marks. Nothing stated herein shall be construed as granting SP any right, title and interest in and to the trademarks and services marks or the goodwill associated therewith, and SP acknowledges that it will at no time during or following the term of this Agreement contest or impair any part of the rights of ACHQ herein or attack the validity of ACHQ trademarks or service marks.
SECTION TWO – INCENTIVE PAYMENT
2.01. Compensation. On or about the twenty fifth (25th) day of each month, ACHQ will credit via ACH into SP’s account an amount equal to the incentive payment (the “Incentive Payment”). The Incentive Payment will be computed monthly as of the last day of each calendar month. This calculation will be based upon the agreed split of Merchant fee activity previously agreed upon ACHQ Integrated Payments Proposal. ACHQ will provide to SP a transactional report each month, corresponding to each Incentive Payment for auditing purposes. SP shall report any claim relating to the Incentive Payment within sixty (60) days of the date of payment, after which the amount of payment shall be final and binding. SP will receive the Incentive Payment only if the applicable fees have been paid in full by Merchants.
SECTION THREE – TERM AND TERMINATION
3.01. Term. The initial term of this Agreement shall be for a period of one (1) year, commencing on the date set forth herein, and shall thereafter automatically renew for additional terms of (1) year on the anniversary date of this Agreement, unless notice is provided in writing by either party of its intent not to renew, 30 days or more prior to the renewal date.
3.02. 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 of its receipt of written notice thereof from the non-breaching party; (b) the other party fails to pay its debts or perform its obligations in the ordinary course of business or becomes the subject of bankruptcy, liquidation, dissolution, or receivership. (c) SP fails to meet its Compensation obligations as outlined in Section 2.01, within 30 days of receipt of invoice from ACHQ, thus exposing ACHQ to possible unauthorized solicitation by SP’s agents, Merchants, affiliates, or Solution Providers.
3.03 Cause. (a) ACHQ may terminate this Agreement immediately if SP engages in activities highly injurious to ACHQ that are material to this Agreement and cannot be cured including, but not be limited to, the commission of a felony such as bank fraud, repeated misrepresentations of ACHQ Services, the unauthorized solicitation by SP of ACHQ Merchants, agents, SPs or employees, serious violation of the Rules per Section 1.05 whereby any opportunity to cure such default is not practical or warranted.
3.04. Regulatory Demand. (a) If NACHA, ODFI, or other entity or any federal, state or other type of regulatory agency having jurisdiction over this Agreement makes a demand that ACHQ discontinue or substantially modify the ACHQ Services, either party may terminate this Agreement upon providing thirty (30) days written notice to the other. (b) If NACHA, ODFI, or other entity or any federal, state or other type of regulatory agency having jurisdiction over this Agreement makes a demand that ACHQ terminate its relationship with SP for reasons pertaining to the conduct or activities of SP, ACHQ may terminate this Agreement immediately.
3.05. Termination Without Cause: Both SP and ACHQ may cancel this Agreement without cause by providing the other party with ninety (90) days written notice
3.06. ACHQ Compensation Following Termination. In the event this Agreement is terminated for the reasons set forth in sections 3.02, 3.03, or 3.04, SP shall have no further obligation to pay Compensation to ACHQ, and ACHQ, in its reasonable discretion, may cease payment of Compensation to SP. In all other cases, SP shall continue to pay Compensation to ACHQ following termination per sections 2.01 and 2.02 for Merchants provided to ACHQ by SP.
SECTION FOUR – OBLIGATIONS
4.01. Confidential Information. SP agrees that ACHQ may disclose to SP, or SPs designees, certain confidential or proprietary information, including without limitation information concerning the ACHQ Services, know-how, technology, techniques, business or marketing plans, merchant information, employees, Solution Providers, affiliates, (collectively, “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, ACHQ. Excluded from this clause shall be information that is public knowledge at the time of disclosure by ACHQ or becomes public knowledge other than by breach of SP. SP agrees that SP shall not disclose in any manner to any third party any portion of the Confidential Information, and shall not use the Confidential Information in any fashion except to perform its duties hereunder and shall disclose the Confidential Information only to employees and agents who need to have access thereto for the SP’s internal business purposes and shall take all necessary steps to ensure that its employees and agents comply with confidentiality restrictions contained in this Agreement and take all necessary precautions to protect the Confidential Information. SP shall promptly notify ACHQ of any unauthorized disclosure of the Confidential Information. SP shall cooperate and assist ACHQ in preventing or remedying any such unauthorized use or disclosure. Upon termination of this Agreement, SP shall return Confidential Information to ACHQ, or if requested by the ACHQ, destroy all Confidential Information.
4.02. Indemnification. SP agrees to indemnify, defend, and hold ACHQ, its employees, directors, managers, officers or agents harmless from and against any reasonable loss, liability, damage, penalty or expense (including reasonable attorneys’ fees and other legal fees) ACHQ may incur as a result of SP’s or SP’s employees, sales reps’, sub contractors’ or affiliates’ or failure to comply with the terms of this Agreement including any misrepresentation of ACHQ Services, breach of representations or warranties made, the manner or method in which services are performed, negligence or acts or omissions that cause damages to ACHQ or it’s Vendors, and violations of the Rules.
4.03. Disclaimer of All Warranties. ACHQ Services are provided “As Is”. ACHQ disclaims all warranties, express, implied, or statutory, to SP as to any matter whatsoever, except as are described in this Agreement. No oral or written information or advice given by ACHQ or its employees or representatives shall create a warranty or in any way increase the scope of ACHQ’ obligations.
4.04. Limitation of Liability. In no case shall ACHQ be liable to SP or to any other third party for loss of data, goodwill, profits, investments, use of money, or use of facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets; or labor claims; or other consequential damages, even if such party has been advised of the possibility of such damages.
4.05. Taxes. SP shall pay, and hold ACHQ harmless from (a) any sales, use, excise, value-added, income or similar tax or duty and any other tax and all government permit fees, which ACHQ may incur in behalf of SP with respect to this Agreement. Such taxes, fees and duties paid by SP shall not be considered a part of a deduction from, or an offset against, payments due to ACHQ hereunder.
4.06. SP Represents and Warrants to ACHQ: (a) SP has the full power and authority to execute, deliver and perform this Agreement, (b) this Agreement is valid, binding and enforceable against SP in accordance with its terms, (c) no provision requiring SP’s performance is in conflict with SP’s obligations under any charter or any other agreement of any form to which SP is bound as a party, (d) If other than a sole proprietorship, SP is duly organized, authorized and in good standing under the laws of the state of its organization, (e) Except as otherwise disclosed in writing by SP to ACHQ on or before the effectiveness of this Agreement, neither SP nor any principal has been subject to any criminal conviction that is material to this Agreement.
4.07 ACHQ Intellectual Property. “ACHQ Intellectual Property” shall include: (a) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (b) patents, patentable inventions, computer programs, and software; (c) databases; (d) trade secrets and the right to limit the use or disclosure thereof; (e) copyrights in all works, including software programs; and (f) domain names, collectively, as “ACHQ Intellectual Property Rights.” Other than the express licenses granted by this Agreement, ACHQ grants no right or license to SP by implication, estoppels or otherwise to any ACHQ Intellectual Property Rights. Upon termination of this Agreement SP shall return to ACHQ all materials or items and cease the use of same in its possession deemed to be protected by ACHQ Intellectual Property Rights.
SECTION FIVE – GENERAL PROVISIONS
5.01. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.
5.02. Drafting. No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. This Agreement shall be deemed to be jointly prepared by the parties and therefore any ambiguity or uncertainty shall be interpreted accordingly.
5.03 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 parties.
5.04 Assignment. SP shall not assign or delegate in any manner or attempt to extend to any third party any right or obligation under this Agreement except as otherwise permitted herein without the prior written consent of ACHQ. Notwithstanding any other provisions in this Agreement, SP upon the occurrence of his/her death may pass on his/her rights to Compensation under this Agreement by will, trust or any other method to anyone she/he chooses in his/her sole and absolute discretion.
5.05. Amendments. Except as otherwise provided in this Agreement, no provision of this Agreement may be amended, modified, or waived except by a written agreement signed by both parties.
5.06. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and given by personal delivery, telecopy (confirmed by a mailed copy), confirmed email or first class mail, postage prepaid, sent to the addresses set forth herein above.
5.07. Section Headings. The section headings contained in this Agreement are for convenient reference only and shall not in any way affect the meaning or interpretation of this Agreement.
5.08. Counterparts/Facsimile Signatures. 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. The signatures to this Agreement may be evidenced by facsimile copies reflecting the party’s signature hereto, and any such facsimile copy shall be sufficient to evidence the signature of such party as if it were an original signature.
5.09. Entire Agreement; Binding Effect. This Agreement, including all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their 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.
5.10. Dispute Resolution, Governing Law, Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida in federal or state court in Sarasota County, Florida. Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party and each party hereby submits to the exclusive personal jurisdiction and venue of such courts.
5.11. Attorneys’ Fees. Should suit or arbitration be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including expert witness fees and fees on any appeal
5.12. Survival. All representations, covenants and warranties shall survive the execution of this Agreement, and sections 1.06, 1.07, 2.01, 2.02, 2.03, 3.02, 3.04, 4.01, 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 5.01, 5.04, 5.06, 5.09, 5.10, 5.11 and 5.12 shall survive termination of this Agreement.