PARTNER (ISO) TERMS AND CONDITIONS
version 2.1 – effective 22 September 2016
WHEREAS, ACHQ is in the business of providing Automated Clearing House services (“ACH”) and Remotely Created Check services (“RCC) to merchants (the “ACHQ Services”), through an Originating Financial Institution (the “Bank”) as such term is defined in the National Automated Clearing House Association (“NACHA”) Rules, as amended from time to time (the “Rules”); or directly via an account established by the Merchant at a financial institute of their choosing and
WHEREAS, ISO desires to solicit and refer merchants to ACHQ for its ACHQ Services and ACHQ is willing to grant to ISO the right to do the foregoing;
NOW THEREFORE, in consideration of the mutual promises set forth below, the parties agree as follows:
1.1 Marketing. ISO shall use its best efforts to market and promote the ACHQ Services and shall solicit, encourage and refer merchants to become customers of ACHQ (the “Merchants”), in accordance with the terms and conditions of this Agreement. ISO shall only use marketing materials which have been pre-approved in writing by ACHQ. All applications and contracts obtained by ISO shall be subject to acceptance by ACHQ at its principal office. ACHQ reserves the right in its sole discretion to: (i) review and approve or disapprove merchants referred by ISO into ACHQ’s merchant program; and (ii) terminate a Merchant. ISO acknowledges that neither this Agreement, nor any portion thereof in any way or manner binds or purports to bind ACHQ to accept any merchant referred by ISO. ACHQ shall have the right, but not the obligation, to refuse to provide ACHQ Services to any person, entity or web site, or any portion thereof, which in its sole discretion ACHQ considers actually or potentially obscene, indecent, offensive, defamatory, unlawful, or infringing upon any proprietary right or third party contract, or otherwise objectionable or unsuitable for posting anywhere.
1.2 Sales Representatives. ISO shall hire its own sales representatives and promptly provide ACHQ with the name, signature, photo identification, location, and social security number of each of its sales representatives, as well as the results of a completed background check.
1.3 Services/Training. ISO will assist potential merchants in completing documentation required for application to ACHQ’s merchant program and any necessary training. Signature of primary officer:
1.4 Compliance with Rules. ACHQ Services are subject to the Rules, where applicable. ISO can obtain a copy of the Rules by contact-ing NACHA at 13450 Sunrise Valley Drive, Suite 100, Herndon, VA 20171 by, calling 703-561-1100, or visiting www.nacha.org. ISO shall comply with the Rules. In the event that the Rules and terms of this Agreement conflict, the Rules shall control. ACHQ may at any time modify its grant of rights to ISO, to the extent necessary to ensure compliance with the Rules or the requirements of the Bank. ISO will comply with all third party and Bank restrictions and limitations on ACHQ Services and shall not take any action or fail to take any action that would cause a violation. ISO shall take immediate action to rectify any sales representatives’ noncompliant activity, or activity which could cause harm to the reputation or business of ACHQ or Bank.
1.5 Additional Obligations of ISO.
A. Conduct. ISO shall not engage in any illegal, unethical or unconscionable business practice, nor engage in any conduct which would result in an unfavorable business reputation.
B. Expense of Doing Business. Unless otherwise agreed to in writing, ISO shall bear the entire cost and expense of conducting business in accordance with the terms of this Agreement.
C. Permits. ISO shall obtain such permits and licenses as required from governmental and regulatory agencies, if any, as are necessary for the conduct of ISO’s business in accordance with this Agreement.
D. Changes. ISO shall promptly advise ACHQ of: (i) any changes in ISO’s status, organization, personnel and other similar matters; (ii) any changes in key personnel, organization, or status of any Merchant; and (iii) any other event or change that could affect the mutual business interests of ISO and ACHQ.
E. Books and Accounts. ISO shall maintain and make available to ACHQ upon its request accurate books and records relating to the business of ISO and its relationship with ACHQ. ACHQ and Bank may conduct financial and procedural audits of ISO to confirm compliance with this Agreement and the Rules. ISO will supply ACHQ or its representatives with information requested by ACHQ for this, or any other purpose, no later than seven (7) days from the receipt of such request.ISO shall also maintain a record of any Merchant complaint regarding either ISO or ACHQ and ISO shall immediately forward to ACHQ all information regarding such complaints.
F. Taxes. ISO shall pay all taxes incurred while performing services under this Agreement, including all applicable income taxes. Upon demand ISO shall provide ACHQ proof that such payments have been made.
G. Background Check. ISO hereby authorizes ACHQ to investigate and confirm the information submitted by ISO to ACHQ. ACHQ may utilize credit bureau/reporting agencies or its own agents.
2.1 ACHQ Services. During the Term and provided that neither ISO, nor Merchant are in default under any provision of this Agreement, ACHQ shall provide Merchants: (i) with ACHQ Services through the Bank, which shall include debiting money on behalf of Merchant for the purpose of collecting automatic payments from the accounts of Merchant’s customers and/or crediting money for the purpose of paying Merchant’s accounts payable; and (ii) retrieval and chargeback data processing services. ACHQ will notify, or cause the Bank to notify, Merchant of a chargeback, ACH reject, or transaction reject.
2.2 Performance. ACHQ agrees to use commercially reasonable efforts to provide ACHQ Services; provided, however, that nothing in this Agreement shall create, directly or indirectly, any obligation on the part of ACHQ to provide ACHQ Services (including the timing of delivery of such ACHQ Services) that it is prohibited from providing because of requirements of the Bank or the Rules. ACHQ does not warrant or represent that its ACHQ Services will be uninterrupted or error free, nor will it be liable for damages resulting therefrom, except where any interruption or error is due to the gross negligence, recklessness or willful misconduct of ACHQ; provided however, that such liability shall be limited in accordance with Section 8.1 of this Agreement. THE WARRANTIES SET FORTH ABOVE CONSTITUTE THE ONLY WARRANTIES WITH RESPECT TO ACHQ SERVICES AND ARE IN LIEU OF ANY OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
2.3 Reporting. ACHQ will provide ISO with a separate, individual agent code, or group or association level segregation on ACHQ’s Merchant Administrative Console (“M.A.C.”). Upon ISO’s request and at ISO’s cost, ACHQ will provide ISO with appropriate electronic reports (“Reports”) detailing any payments due to ISO. The Reports will be provided exclusively through the M.A.C. and upon the written consent of ISO, ACHQ will provide such reporting via ACHQ’s M.A.C.
2.4 Marketing Assistance and Training. ACHQ shall provide training to ISO and its sale representatives to enable such sales representatives to sell ACHQ Services and service Merchants. ACHQ assistance may include:
i) preparation of a marketing plan;
ii) supplying questionnaires, forms and agreement;
iii) providing technical and marketing support to ISO;
iv) meeting with merchants;
v) working with Merchants to resolve service problems; and
vi) collecting and distributing Merchant fees to ISO and reporting same to ISO.
2.5 Merchant Administrative Console Limited License. During the Term of this Agreement and in the event that ISO uses the M.A.C. ISO shall have a non-transferable, non-exclusive license to use the M.A.C., under such terms and conditions as maybe determined by ACHQ from time to time. ISO shall submit all of its merchant agreements or approvals online to ACHQ, by utilizing ACHQ’S M.A.C. Upon termination of this Agreement, this license will terminate and ISO will cease using the M.A.C. ISO agrees to pay to ACHQ all M.A.C. fees, as determined from time to time by ACHQ. ISO shall have no right to use, replicate, or obtain any ownership right in any business methods or processes utilized by ACHQ. Further, ISO shall have no right to obtain source code for M.A.C by any means. ISO shall not reverse engineer, decompile, disassemble, translate, modify, disclose to any third party, or develop any software that is competitive with all or any part of M.A.C. without the prior written consent of ACHQ. ISO shall have no right to use, market, distribute, sell, sublicense, deliver or otherwise transfer M.A.C. to any third party. ISO shall not copy, nor allow others to copy, M.A.C. ISO shall not remove from M.A.C. or its packaging, or alter any trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to M.A.C., or its packaging. ISO will not challenge ACHQ’s ownership of M.A.C. or do anything that would contest or impair any of ACHQ’s rights in M.A.C.
2.6 Assignment of Income by ISO. ISO acknowledges that ACHQ is authorized to withhold amounts owed to ISO under this Agreement and make payment directly to third parties to whom ISO has granted a security interest, assignment or other authority to receive direct payment from ACHQ of funds otherwise due to ISO.
3. Incentive Payment. On or about the twenty fifth (25th ) day of each month, ACHQ will credit via ACH into ISO’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 in Exhibit A of: (i) Merchant activity for the period, and (ii) buy rates extended to the ISO by ACHQ in Exhibit A. The method of calculation has been selected by ISO and is reflected on Exhibit A. ISO 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. ISO will receive the Incentive Payment only if the applicable fees have been paid in full by Merchants.
IV. TERM, TERMINATION, DEFAULT
4.1 Term. This Agreement shall commence on the Effective Date and remain in effect for a period of three (3) years (“Initial Term”). This Agreement shall thereafter be automatically renewed for additional successive one (1) year periods (“Renewal Term”), unless terminate as provided in Section 4.2. The Initial Term and the Renewal Term shall be collectively referred to as the “Term”.
4.2 Termination. Notwithstanding Section 4.1, either party may terminate this Agreement: (i) at the end of the Initial Term or any Renewal Term upon written notice of termination to the other party at least ninety (90) days prior to the end of the Initial Term or any Renewal Term; or (ii) at any time, upon five (5) days written notice.
4.3. Certain Post-Termination Rights. Upon termination of this Agreement, ACHQ shall cease accepting ISO contracts. ACHQ shall have the right, but not the obligation to continue to service the Merchants. ISO shall be entitled to an Incentive Payment based upon revenue from any continuing Merchants, subject to any setoff rights, or claim of ACHQ and the terms of Section 2.6. After any termination of this Agreement, ISO shall continue to bear total responsibility for all amounts then due or which thereafter may become due to ACHQ under this Agreement.
V. MUTUAL OBLIGATIONS
5.1 Representations and Warranties. Each party represents and warrants to the other that:
A. Good Standing. In the event that ISO is a legal entity, each party warrants that it is a corporation or limited liability company organized, validly existing and in good standing under the laws of the State where its principal office is located.
B. Full Authority. Each party has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement.
C. Sale of Information. Neither party will sell, purchase, provide, or exchange, check, credit card or debit card account numbers of the other party, merchant information, social security or employer identification numbers, routing numbers, or any other confidential information, to any third party without the prior written consent of the other party.
D. No Violation. Neither party’s performance of this Agreement will violate any applicable law, or regulation, or any agreement to which that party may now be bound.
E. Enforceability. This Agreement represents a valid obligation of that party and is fully enforceable against it.
F. Compliance. Both parties will comply with the terms of this Agreement, with the Rules, and with all applicable state and federal laws and regulations.
G. No Litigation. Neither party nor its officers and directors are a party to any pending litigation that would have a material impact on this Agreement.
H. Authorization. No authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement.
A. Information. ISO and ACHQ 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, information related to M.A.C., and information related to merchants, all of which the parties agree belong to ACHQ), 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. No party will be obligated to maintain the confidentiality of information: (i) it is required to reveal in performing its obligations under this Agreement; (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 it; (iv) was received from another source that has no restriction on use or disclosure; or (v) is required to be disclosed by state or federal law. ACHQ shall have the right to inspect ISO’s premises and the premises of all sales personnel to ensure that confidential information is properly protected from disclosure, damage or theft. All obligations provided in this Section 5.2 shall survive the termination or expiration of this Agreement.
B. Remedy. In the event of a breach of this section, the parties agree that the nonbreaking 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 damage.
6.1 Name and Trademarks. Neither party will use the other’s name or trademarks in any promotional or marketing materials without prior written consent. During the Term of this Agreement, ISO shall have the right to indicate to the public that it is an independent sales representative of ACHQ’s ACH services and to advertise ACHQ’s Services under the trademarks, trade names and marks that ACHQ may adopt from time to time (“ACHQ Trademarks”). Nothing herein shall grant ISO any right, title or interest in ACHQ’s Trademarks. At no time during or after the Term of this Agreement shall ISO challenge or assist others to challenge ACHQ’s Trademarks or attempt to register any trademarks, marks or trade names similar to those of ACHQ.
6.2 Return of Materials. All of ACHQ’s trademarks, trade names, patents, copyrights, designs, drawings, formulas or other data, photographs, demonstrators, literature, and sales aids of every kind shall remain the property of ACHQ. Within ten (10) days after the termination of this Agreement, ISO shall return all such items to ACHQ at ISO’s expense. ISO shall not make or retain any copies of any confidential items or information that may have been entrusted to it. Effective upon the termination of this Agreement, ISO shall cease to use all trademarks, marks and trade names of ACHQ.
7.1.Indemnification by ISO. ISO shall defend, indemnify and hold ACHQ, the Bank and any of their officers, directors, agents and employees harmless from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or other expenses, including reasonable attorneys’ fees and other litigation expenses, incurred by ACHQ, the Bank and any of their officers, directors, agents and employees arising out of or relating to:
(a) any breach or alleged breach by ISO of any representation, warranty, or obligation of ISO set forth in this Agreement;
(b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by ISO or any of its employees, agents or Merchants;
(c) the payment data, purchase orders or other transactions submitted by ISO or its Merchants to ACHQ;
(d) infringement of a patent, copyright, trademark or other intellectual property right by ISO or its Merchants;
(e) claims of Merchants, including, without limitation, claims relating to the disclosure of merchants data;
(f) any alleged or actual violation by ISO of any applicable laws, regulations or rules of any regulatory body or agency having jurisdiction over the subject matter hereof;
(g) any violation of ACHQ’s then current policies or guidelines; and/or
(h) for any claims, losses or liabilities in connection with such equipment leases or sales, including but not limited to costs and reasonable attorneys fees expended by ACHQ in connection with a lawsuit brought by a Merchant related to an equipment lease or sale.
7.2 Indemnification by ACHQ. ACHQ shall defend, indemnify and hold ISO and any of its officers, directors, agents and employees harmless from and against third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses including reasonable attorneys’ fees and other litigation expenses incurred by ISO, arising out of or relating to any infringement of a U.S. patent of any other entity or person by ACHQ.
7.3 Indemnification Procedure. The obligations of each party (“Indemnitor”) under this Section 7 to defend, indemnify and hold harmless the other party (“Indemnitee”) shall be subject to the following:
(a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this section to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause
(b) above, Indemnitee may participate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice Indemnitee in any way. All obligations provided in this Section 7 shall survive the termination or expiration of this Agreement.
8.1 Limitation of Damages. In no event will any party, or any of its officers, directors, employees or agents be liable for any special, indirect, incidental, consequential or punitive damages of any kind, including without limitation, damages for lost revenue, lost profits, anticipated profits, lost business or injury to business reputation, costs of procurement of substitute services under any theory of liability or cause of action, whatsoever regardless of the form or action, whether in contract, tort, or otherwise even if advised of that possibility. Except for the liability arising from gross negligence, recklessness, or willful misconduct, the total cumulative liability of ACHQ in the aggregate for damages arising from any breach of this Agreement or for any other claims under this Agreement, shall not exceed an amount equal to the lesser of: (a) the sums received by ACHQ pursuant to this Agreement, during the thirty (30) days prior to any claim of liability; or (b) one thousand five hundred($1,500.00) dollars.
8.2 Non-Solicitation. During the Term of this Agreement and thereafter, ISO shall not directly or indirectly, whether or not for compensation, engage in any business activity, whether as an employee, proprietor, officer, director, agent, trustee, partner or creditor lending money for the purpose of establishing or operating any such business, that
(a) induces or attempts to induce, directly or indirectly, any merchant to modify or terminate such merchant’s business association with ACHQ or
(b) interferes with, disrupts or attempts to disrupt any present business relationship, contractual or otherwise, between ACHQ and any merchant, client, supplier, consultant, agent or employee of ACHQ. The parties acknowledge that any breach of these non-solicitation provisions will cause immediate, irreparable and continuing damage to ACHQ for which there is no adequate remedy at law. Consequently, the parties acknowledge and agree that in the event of any breach or violation or threatened breach or violation of these non-solicitation provisions, ACHQ and its successors and assigns shall be entitled to temporary, preliminary and permanent injunctive relief and restraints enjoining and restraining such breach or violation or threatened breach or violation and such other legal and equitable remedies as may be provided by applicable law. This Section 8.2 shall survive termination or expiration of this Agreement.
8.3 Relationship of the Parties. Nothing contained herein shall be construed as creating any relationship other than independent contractors, and no partnership, joint venture, or agency relationship is created hereby. ISO will not hold itself out as an affiliate or agent of ACHQ, nor represent the existence of any relationship between, the parties, except that ISO may disclose the fact that the parties have a referral relationship. Neither ACHQ, nor ISO shall have any right or authority to enter into any contract or commitment in the name of or on behalf of the other, nor to bind or purport to bind the other party in any manner whatsoever. In no event shall ISO make any representation, guarantee or warranty concerning ACHQ except as expressly authorized by this Agreement and ISO shall not change any term or condition of the Merchant Agreement or any other agreement or documentation, without ACHQ’s prior written consent. ISO acknowledges that ACHQ shall make no state or federal unemployment compensation payments on behalf of ISO or ISO’s employees or contract personnel. ISO further acknowledges that neither ISO, nor ISO’s employees or contract personnel are eligible to participate in any employee pension, health, vacation pay, sick pay or other fringe benefit plan of ACHQ. ACHQ shall not be required to obtain workers’ compensation insurance on behalf of ISO or ISO’s employees. If ISO hires employees to perform any work under this Agreement, ISO shall obtain workers’ compensation insurance to the extent required by law and provide ACHQ with a certificate of workers’ compensation insurance before such employees begin work.
8.4 Non-Exclusive Agreement. This Agreement does not imply an exclusive referral arrangement by both parties. Either party may enter into other referral arrangements that do not violate the obligations of this Agreement.
8.5 Marketing Materials. Any brochures, documents, web pages or marketing materials provided by ACHQ to ISO shall remain the property of ACHQ. ISO shall have full responsibility to keep marketing materials up to date during the Term. Upon termination and within ten (10) days of a written request from ACHQ, ISO shall return all marketing and proprietary information to the ACHQ.
8.6 Notice. All communications under this Agreement will be in writing and will be delivered in person, by mail or courier, addressed to the registered office address for each party. The parties may, from time to time, designate different persons or addresses to which subsequent communications will be sent by sending a notice of such designations in accordance with this Section. Notice shall be effective upon receipt.
8.7 Entire Understanding, Amendment. This Agreement, including the Exhibits which are incorporated by reference, sets forth the entire understanding of the parties relating to its subject matter, and all other understandings, written or oral, are superseded. Except as otherwise provided in this Agreement, this Agreement may not be amended except in a writing executed by all parties, Facsimile and electronic writings shall be deemed sufficient for all purposes under this Agreement.
8.8 Severability. If any provision of this Agreement is illegal, the invalidity of such provision will not affect any of the remaining provisions, and this Agreement will be construed as if the illegal provision is not contained in the Agreement. This Agreement will be deemed modified to the extent necessary to render enforceable the remaining provisions.
8.9 No Waiver of Rights. No failure or delay on the part of any party in exercising any right under this Agreement will operate as a waiver of that right, nor will any single or partial exercise of any right preclude any further exercise of that right.
8.10 Successors and Assigns. ISO may not assign this Agreement or any rights or duties hereunder, without the prior written consent of ACHQ. ACHQ may assign its rights and delegate its duties under this Agreement to any third party. Subject to the foregoing, this Agreement will, apply to be binding in all respects upon and inure to the benefit of the successors and permitted assigns of the parties.
8.11 Applicable Law. The Agreement will be deemed to be a contract made under the laws of the state of Florida, and will be construed in accordance with the laws of Florida without regard to principles of conflicts of law.
8.12 Arbitration. Any dispute between us shall be submitted to binding arbitration in Wilmington, Delaware, to be conducted pursuant to the Rules of the American Arbitration Association. Any award may include an award for reasonable attorney’s fees and costs. The arbitrators award may be entered in any court having jurisdiction of the parties.
8.13 Construction. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision. All sections mentioned in the Agreement refer to section numbers of this Agreement. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.
8.14 Force Majeure. Neither party will be liable to the other for any failure or delay in its performance of this Agreement if such failure or delay arises out of causes beyond its reasonable control and without the fault or negligence of such party.