EXHIBIT 8.1.1.
ALIANT FINANCIAL
SERVICES
INDEPENDENT SALES AGENT AGREEMENT
THIS ALIANT FINANCIAL SERVICES INDEPENDENT CONTRACTOR AGREEMENT (this
"Agreement") is entered into by and between Aliant Financial Services, Inc.,
with its principal place of business at 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
XX 00000 ("Aliant"), and the undersigned, Xxxxxx Beaumont Inc. with a principal
place of business at 0000 00xx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000
("Representative").
WHEREAS, Aliant is a registered Independent Sales Organization (ISO)
with VISA. U.S.A., and a registered Member Service Provider (MSP) with
MasterCard, International, and maintains contractual agreements with MasterCard,
VISA U.S.A. and Member Banks (hereinafter Banks), whereby Aliant solicits
prospective merchants to apply to Banks for Merchant Agreements, and provides
various merchant account services to Banks; and,
WHEREAS, Aliant desires to retain Representative as an independent
contractor and non-exclusive sales representative to assist Aliant in soliciting
prospective merchants to apply to Banks for Merchant Agreements and in providing
various merchant services to Banks, and Representative desires to render such
assistance to Aliant in accordance with the terms and conditions of this
Agreement.
NOW, THEREFORE, Aliant and Representative, in consideration of the
mutual covenants and agreements, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, agree as follows:
DEFINITIONS
For purposes of this Agreement, the following terms shall have the meaning set
forth below:
(a) BANKCARD means a credit card or debit card issued by a member of either
MasterCard or VISA and bearing its respective trade names, trademarks, and/or
trade symbols.
(b) BANKCARD SALE means each sale by a Merchant of merchandise or services
through the use of a Bankcard.
(c) CARDHOLDER means (1) a person whose name is embossed upon the face of a card
or (ii) any authorized user of a Bankcard.
(d) CHARGEBACK means a disputed charge by a Cardholder or rejected Sales Draft
that is returned unpaid for any reason by the issuer of the Bankcard.
(e) CONFIDENTIAL INFORMATION means all proprietary, secret or confidential
information or data relating to either party and its affiliates, operations,
employees, products or services, clients, customers or potential customers.
Confidential Information shall include customer lists, cardmember account
numbers, pricing information, computer access codes, instruction and/or
procedural manuals, and the terms and conditions of this Agreement. Information
shall not be considered Confidential Information to the extent, but only to the
extent, that such information is: () already known to the receiving party free
of any restriction at the time it is obtained; a subsequently learned from an
independent third party free of any restriction and without breach of this
Agreement; (ii) or becomes publicly available through no wrongful act of the
receiving party; (iv) independently developed by the receiving party without
reference to any Confidential Information of the other, or (v) required to be
disclosed by law.
(f) CREDIT TRANSACTION means the exchange, return Of, and adjustment on
merchandise or services sold by a Merchant in a Sales Transaction and the face
amount thereof when used in this Agreement In reference to payments to the
Cardholder.
(g) FRONT END PRODUCTS means all basic dial terminal products used in the
authorization and settlement process, and excluding premium products such as
Payment Pro, Signature Capture pad and EPT Scan.
(h) INTERCHANGE FEE means the then-current fee charged by MasterCard and VISA
for each Transaction.
(i) MASTERCARD means MasterCard International, Incorporated.
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(j) MERCHANT means each merchant directly solicited by Representative on behalf
of Aliant and Banks that becomes a party to a Bankcard processing agreement with
Aliant and/or Banks due to Representative's efforts,
(k) MERCHANT PROCESSING AGREEMENT means a written agreement entered into between
the Banks and a Merchant pertaining to Bankcard Sales by the Merchant
(1) Program means the program of Merchant participation in the MasterCard and
VISA systems described in the Merchant Processing Agreement.
(m) PROGRAM STANDARDS means the credit criteria, standards and policies and
procedures established by Aliant and Banks to be used by Representative in
connection with the solicitation of prospective Merchants and other policies and
procedures established by Aliant and Banks that are designed to promote Merchant
satisfaction, to preserve relationships with existing Merchants, to facilitate
the growth of the Program, and to ensure the financial safety or soundness of
Aliant, the Banks and their Program.
(n) RULES means all bylaws, rules, operational regulations, procedures and
guidelines promulgated by MasterCard and/or VISA, as they may from time to time
be amended.
(o) SALES DRAFT means a form provided or approved by Banks to be executed by a
Cardholder as evidence of a purchase of merchandise or services from a Merchant
through the use of a Bankcard.
(p) SALES TRANSACTION means a sale by a Merchant of merchandise or services
through the use of a Bankcard and the face amount thereof when used in this
Agreement in reference to payments to the parties.
(q) TRANSACTION means a Visa or MasterCard Sales Transaction, Credit
Transaction, or Chargeback.
(r) VISA means VISA U.S At Inc. or VISA International.
2. RELATIONSHIP OF THE PARTIES
Aliant and Representative acknowledge and agree that Representative's
relationship with Aliant is solely that of an independent contractor and nothing
contained in this Agreement shall be construed to constitute Aliant and
Representative as partners, joint venturers, co-owners or otherwise as
participants in a joint or common undertaking. Representative shall have no
power or authority, express or implied, to represent, act for, or otherwise
create or assume any obligation on behalf of, or binding upon, Aliant other than
as expressly set forth in this Agreement. As a Representative, it is understood
and agreed that Representative is not entitled to participate in any group
medical plans, pension plans, bonus, stock, or similar benefits that Aliant
provides to its employees. It is further understood that Representative is
responsible for paying (and that Aliant has no responsibility to withhold on
Representative's behalf) any and all required state and federal taxes,
including, but not limited to FIFL (Social Security), unemployment insurance,
federal or state Income taxes, disability insurance and worker's compensation
insurance.
3. APPOINTMENT OF REPRESENTATIVE AS AN EXCLUSIVE SALES REPRESENTATIVE
Aliant appoints Representative, on an exclusive basis, and Representative
accepts such appointment, as a marketing and sales representative of Aliant for
the purpose of soliciting prospective merchants to make application to Banks for
Merchant Agreements, and to provide various merchant account services on behalf
of Banks as more specifically set forth in this Agreement. Representative shall
utilize its best efforts in the performance of its obligations hereunder, and
shall at all times conduct itself in a reputable manner and in full compliance
with all applicable laws, rules, regulations, decisions and orders, including
any and all applicable rules and regulations of VISA and MasterCard.
Representative understands that this Agreement is non-exclusive as to Aliant,
and that Aliant reserves the right to enter into similar agreements with other
independent contractors as marketing and sales representatives of Aliant.
Subject to the terms and conditions of this Agreement, Aliant hereby appoints
Representative as the exclusive provider of debit/stored value card related
leads to Aliant; additionally Representative appoints Aliant as the exclusive
provider and processor of all credit card/bankcard processing.
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The utilization or employment by Representative of assistants, employees or
agents (collectively "Sub-Agents") in the performance by Representative of the
duties and obligations articulated in Paragraph 4, is strictly prohibited and
any violation shall be a material breach of this Agreement. It is understood
that the foregoing shall not preclude Representative from using Sub-Agents in
the performance of activities by Representative unrelated to the duties and
obligations of Representative in Paragraph 4 below. Representative understands
and acknowledges that the utilization or employment of any Sub-Agents by
Representative in violation of the terms and conditions of this Agreement, is a
violation of regulations of VISA and/or MasterCard.
4. DUTIES OF REPRESENTATIVE
The duties and obligations of Representative shall be as follows:
(a) SOLICITATION. Representative will use its best efforts to solicit
prospective Merchants to execute Merchant Processing Agreements with Aliant and
Banks. Representative will (i) communicate to Merchants the existence and
availability of the Program, provided that the nature and content of such
communication shall be approved by Aliant and Banks; (ii) distribute promotional
materials approved by Aliant and Banks regarding the Program to Merchants in a
manner specified from time to time by Aliant and Banks; and (iii) perform other
reasonable services which Aliant deems desirable to promote and market the
Program. It is understood and agreed that Aliant shall own all rights in the
Merchant Agreements solicited under this Agreement.
(b) INFORMATION. Representative shall instruct Merchants to furnish Aliant with
such financial information as Aliant may from time to time request.
Representative will use their best efforts to inform Aliant of any information
that it reasonably considers relevant to an existing or potential Merchant's
creditworthiness. Representative shall follow the Program Standards in
soliciting prospective Merchants.
(c) DUTIES. Representative shall obtain such information and take such action as
Aliant may from time to time require In connection with its processing
applications of prospective Merchants, including, without limitation:
(i) Assist each Merchant in fully completing Aliant's Merchant
Processing Application;
(ii) Take all necessary action to verify that each prospective Merchant
conducts or intends to conduct a bona fide business operation, including, but
not limited to, inspecting the Merchant's premises to determine whether Merchant
has the proper facilities, equipment, inventory and license or permit if
necessary, to conduct the business;
(iii) Submit a written inspection report to Aliant in such form as
Aliant may from time to time designate; and
(iv) Obtain and submit to Aliant, as required by Aliant and/or Banks,
financial statements, Bankcard statements and corporate resolutions for each
prospective Merchant. Representative warrants that as of the date of submission
to Aliant, the inspection report and all other information provided to Aliant by
Representative shall to Representatives knowledge be correct, complete and not
misleading. Notwithstanding the foregoing, Aliant acknowledges and agrees that
Representative is not obligated to verify any financial information and makes no
warranties regarding the accuracy of any financial information.
(d) ASSISTANCE. Representative will use its best efforts to cause each Merchant
to fully pay and perform its obligations under the Merchant Processing Agreement
and to assist Aliant and Banks in collecting any amounts owed by a Merchant from
time to time.
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(e) MERCHANT FEES. Representative shall be entitled to charge and collect
directly from each prospective Merchant a reasonable fee or charge for
completing and submitting a completed Merchant Processing Agreement to Aliant
and for the sale or other provision of point-of-safe terminals and other
electronic devices, imprinters and other supplies. Such fees and charges shall
be established by Aliant and Banks from time to time. All such approved fees and
charges must be (1) clearly and conspicuously disclosed to each prospective
Merchant and shall be disclosed in writing and provided to the prospective
Merchant in advance of submission of the Merchant Processing application for
consideration by Aliant, and (ii) charged and collected in accordance with all
applicable laws and regulations and the Rules. In the event a Merchant or
prospective Merchant is entitled to a refund of any such fee or charge,
Representative will refund said fee or charge in full no later than thirty (30)
days from the date an which the Merchant or prospective Merchant is entitled to
such refund or immediately upon demand by Aliant or a Merchant for a refund,
whichever is earlier.
(f) EQUIPMENT The sale and/or rental of point-of-sale terminals and other
equipment shall be solely pursuant to separate written agreements between
Representative and the Merchants. Representative agrees that Aliant and Banks
assume no responsibility and shall not be liable in any manner for any such sale
or rental.
5. COVENANTS AND WARRANTIES OF REPRESENTATIVE
Representative warrants and represents to Aliant the following:
(a) RULES AND REGULATIONS OF MASTER CARD AND VISA Representative is familiar
with and understands all of the rules and regulations of VISA and MasterCard
(Including authorized, legitimate and proper use of VISA, MasterCard and
affiliated credit card marks and names), and expressly agrees that it shall
strictly abide by all such rules and regulations, as those rules and regulations
may be amended from time to time. Representative agrees that it shall indemnify
and hold Banks and Aliant harmless for any violation of those rules and
regulations by Representative.
(b) DISCLOSURE OF REPRESENTATION Representative shall disclose to each
prospective merchant the fact that Representative is acting as a sales
representative of Aliant and the identity and location (address) of Banks.
During the term of this Agreement, Representative is authorized to display the
names and/or trademark of Aliant on Representative's business cards and
solicitation materials, subject, however to Aliant's approval not to be
unreasonably withheld.
(c) NON-INTERFERENCE So long as any Merchant Processing Agreement of any
Merchant solicited by Representative remains in effect, Representative shall not
interfere in any manner whatsoever with the contractual rights and interests of
Banks and/or Aliant under any such Merchant Agreement, either directly or
indirectly (including, without limitation, through any partnership, joint
venture as an employee or other entity or arrangement whatsoever), or to cause
or attempt to cause any approved Merchant or other merchant of Banks and/or
Aliant to engage in bank card transaction processing through any person or
entity other than Banks and/or Aliant. The covenants of Representative and all
other provisions of this Subparagraph 5 (c), shall survive termination of this
Agreement for a period of Five (5) years. Further, AFS shall not be permitted to
grant permission to any other stored value providers or related companies to use
or reload any of their products an the AFS provided terminal.
6. COMPENSATION OF REPRESENTATIVE
Subject to the provisions of this Agreement, including without limitation the
provisions of Paragraph 10 and Subparagraph 11(b) below, Representative shall be
entitled to receive from Aliant as compensation for the services rendered by
Representative the following:
(a) FEES. Source shall be paid ten percent (10%) of the net processing profit
derived from all Leads that are approved to utilize the AFS Services. Said
compensation shall be paid on the net profits as defined as all amounts
collected from the Leads less any losses, chargebacks and costs incurred in
providing the AFS Services to the Leads. Residuals will only be paid on the
fifteenth business day of the month following the month of collection. It is
expressly understood and agreed that AFS shall be under no obligation to make
any payment to Source hereunder as to any Lead for which AFS is no longer
receiving, for any reason whatsoever, its corresponding recurring compensation
for such merchant credit card transaction processing from such referred bank or
financial institution.
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(b) MERCHANT LOSSES. Representative shall bear no liability to Aliant or Banks
for the face value of any Merchant chargebacks, except to the extent that any
such Merchant chargebacks are either directly or indirectly related or
attributable to the gross negligence, willful misconduct or fraudulent acts of
Representative, or any of its employees, agents or nominees, or the breach of
this Agreement by Representative, or any of its employees, agents or nominees,
in which case Aliant and Banks shall have full recourse to Representative, and
Representative shall be liable to Aliant and Banks for the full face value of
such Merchant chargebacks. Aliant may deduct the amount owed by Representative
from any amount due to Representative under this Agreement The provisions of
this Paragraph 6 shall survive termination of this Agreement
7. ACCOUNTING AND PAYMENT
Aliant shall pay all fees due and owing to Representative under Paragraph 6 (a)
above on or before the fifteenth (15'h) business day of each month, for all fees
earned during the preceding calendar month.
8. REPORTING
In conjunction with each monthly fee payment, if any, from Aliant to
Representative pursuant to the provisions of Paragraphs 6(a) and 7 above, Aliant
shall provide to Representative a report setting forth the basis upon which the
fee payment is computed.
9. TERM OF AGREEMENT
Subject to Sections 10 and 11, this Agreement shall be effective upon the
execution by both parties and shall continue for an initial term of one (1)
year, and at the expiration of the initial term (and any renewal term), then
this Agreement shall automatically renew for consecutive additional one (1) year
terms. Either party may terminate this Agreement, unilaterally and without
cause, at the expiration of the initial term or any renewal term, upon no less
than ninety (90) days written notice to the other party. Aliant may elect on not
less than three (3) days prior written notice to terminate this Agreement at any
time during the initial ninety (90) day(,) period of this Agreement, for any
reason whatsoever, or for no reason, in its sole discretion. In the event of
termination under this Paragraph 9, Representative shall continue to receive
compensation as described in Paragraph 6(a) above.
10. TERMINATION BY ALIANT
Notwithstanding any terms to the contrary in this Agreement, this Agreement may
be terminated by Aliant upon the occurrence of any of the following:
(a) REGULATORY ORDER Aliant may immediately terminate this Agreement upon
written notice to Representative if Aliant, Representative and/or Banks become
subject to any change in a statute, law, rule, regulation, policy or other
official pronouncement of any state or federal government entity, regulatory
agency or of MasterCard and/or VISA which would prohibit Aliant, Representative
and/or Banks from continuing the business described in this Agreement.
(b) BREACH OF VISA/MASTERCARD RULES Aliant may immediately terminate this
Agreement upon written notice to Representative, if Representative materially
violates any of the rules or regulations of VISA and/or MasterCard.
(c) LOSS OF VISA/MASTERCARD MEMBERSHIP: BANK RELATIONSHIP Aliant may immediately
terminate this Agreement upon written notice to Representative, it () Aliant
de-registration with VISA as representative and/or Aliant de-registration with
MasterCard as an MSP; (ii) termination of Banks VISA and/or MasterCard license,
its membership in VISA and/or MasterCard, or both; (ill) termination of Aliant's
agreement with Banks; or (iv) termination of registration of Representative with
VISA and/or MasterCard.
(d) FAILURE TO COMPLY WITH APPLICABLE LAWS, RULES, AND REGULATIONS Aliant may
immediately terminate this Agreement upon written notice to Representative that
Representative has materially failed to comply with or violate any applicable
laws, rules and/or regulations relating to the performance of Representative
under this Agreement, including without limitation, the commission of any
material act of dishonesty, fraud, misrepresentation, or other act of moral
turpitude.
(e) UNSOUND BUSINESS PRACTICES Aliant may immediately terminate this Agreement
upon written notice to Representative, if Aliant determines in good faith that
Representative's conduct under this Agreement constitute unsound business
practices, or might have an adverse effect on Aliant or Banks' reputation, or
Impose a financial risk to Aliant or Banks.
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11. TERMINATION BY EITHER PARTY
In addition to any other remedies, either party may terminate this Agreement
immediately upon written notice to the other party, if.
(a) MATERIAL BREACH The other party commits a material breach which is not cured
within five (5) days after receipt of written notice from the non-breaching
party (or in the event such breach can be cured but cannot reasonably be cured
within five (5) days then within such longer period of time (not to exceed sixty
(60) days) as is required to cure, provided the breaching party promptly
commences and diligently pursues remedial action to completion.
(b) INSOLVENCY_ The other party files a voluntary petition in bankruptcy or
files a petition seeking or acquiescing in any relief for itself under any
federal, state or other law relating to bankruptcy, insolvency or other relief
for debtors; or seeks or consents to in the appointment of any trustee, receiver
or liquidator of all or any part of its property; or admits in writing its
inability to pay its debts generally as they become due.
(c) DISSOLUTION The other party is dissolved or otherwise ceases to engage In
its normal business operations and is unable to fulfill its obligations under
this Agreement.
12. INDEMNIFICATION
Representative shall indemnify, defend, and hold harmless Aliant and Banks,
their employees, officers, directors, shareholders, agents, corporate parents
and affiliates against any and all claims, liabilities, losses, damages, costs
or expenses (including, without limitation, fees and expenses of attorneys and
consultants and court costs) either directly or indirectly related or
attributable to the negligence or wrongful act of Representative, or any of its
employees, agents or nominees, In performance hereunder, or the breach of this
Agreement or any provision hereof by Representative, or any of its employees,
agents or nominees in any way associated with or related to this Agreement. This
indemnification obligation of Representative shall Include, without limitation,
any and all claims for contractual, tortuous, exemplary, punitive or statutory
damages of any nature whatsoever and any and all injunctive or other equitable
relief. Representative's covenants in this Paragraph 12 shall survive any
termination of this Agreement.
13. LIMITATION OF LIABILITY
Notwithstanding anything in this Agreement to the contrary, in no event shall
Aliant, its respective affiliates or any of their respective directors,
officers, employees, agents or subcontractors, be liable under any theory of
tort, contract, strict liability or other legal theory for lost profits, last
revenues, lost business opportunities, exemplary, punitive, special, incidental,
indirect or consequential damages, regardless of whether the damages were
foreseeable or whether any party has been advised of the possibility of the
damages.
14. FORCE MAJEURE
Neither party shall be liable for any failure to perform any obligations under
this Agreement because of acts of God, nature or a federal, state or local
government agency, war, civil disturbance, labor disputes or shortages,
electrical or mechanical breakdowns, or any other cause beyond the control of
that party, including the issuance of an injunction by either a state or federal
court prohibiting the party from carrying on its day-to-day operations as
contemplated under the terms of this Agreement.
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15. PROPRIETARY INFORMATION OF ALIANT
Representative acknowledges and agrees that Aliant has expended great time and
effort in developing its merchant account services for the retail marketplace.
Representative further acknowledges that all data, printed and written material,
application forms, contracts and other information furnished by Aliant to
Representative ("Aliant Proprietary Information"), shall be regarded by
Representative as confidential and proprietary. Aliant Proprietary Information
includes, but is not limited to, information pertaining to Aliant business
methods, all information relating to Merchants accepted by Aliant, details
regarding the functioning of the computer systems, trade secrets, know-how,
inventions, techniques, processes, programs; schematics, software source
documentation, customer lists, financial information, sales, business and
marketing plans and all of the contracts and correspondence generated by Aliant
concerning the same, Representative's use of Aliant Proprietary Information is
limited to the term of this Agreement. Representative shall not use or disclose
any Aliant Proprietary Information to any other person or entity during the term
of this Agreement and for three (3) years thereafter. Representative agrees that
upon the expiration or termination of this Agreement, all Aliant Proprietary
Information in Representative's possession will be returned to Aliant within
thirty (30) days of such expiration or termination. This Paragraph shall be
inoperative as to such portions of information which (i) are or become generally
available to the public other than as a result of any breach of this Agreement
by Representative or its agents or employees, or (iii) becomes available to
Representative on a nonconfidential basis from a source other than Aliant, which
source is entitled to disclose that information. In the event that a protective
order or other remedy is not obtained or Aliant waives compliance with the
provisions of this Agreement, Representative will furnish only that portion of
the information which is legally required and will exercise its best efforts to
obtain reliable assurances that confidential treatment will be accorded the
information.
16. NOTICE
Any notice that the parties are required or may desire to deliver shall be
delivered by facsimile transmission, with a confirming copy sent by United
States mail, certified or registered, return receipt requested, proper postage
prepaid to the other party at the address set forth below. Such notice shall be
deemed delivered on the first (1st) business day following the facsimile
transmission, provided that the sender can reasonably demonstrate its receipt or
in the of proof of facsimile transmission, on the first (1st) business day after
the date of mailing.
17. MEDIATION AND ARBITRATION
If any dispute between Aliant and Representative arising under this Agreement
cannot reasonably be resolved by the parties through mutual negotiation, the
parties hereto agree that the claim or dispute will be resolved by mediation
and/or arbitration as set forth in this Paragraph 17. Any dispute under this
Agreement will first be submitted to informed and non-binding mediation before
an impartial mediator or referee acceptable to both parties, who will hear the
issues and guide the parties to a fair and equitable resolution. If the dispute
or claim cannot be resolved through mediation, the parties agree that the matter
will then be submitted to and decided by arbitration under the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. Each party shall bear its own expenses and attorneys' fee
incurred in connection with these dispute resolution procedures and will share
equally the fees and expenses of the mediator(s) or arbitrator(s), This
agreement to mediate or arbitrate waives any right to trial by jury. All rights
under this paragraph 17 shall be waived by Representative in the case of
termination by Aliant under Section 10 of this agreement.
18. GOVERNING LAW
This Agreement, and all the documents referred to herein, shall in all respects,
be interpreted, enforced and governed by and under the laws of the state of
Florida.
19. CREDIT AND BACKGROUND INVESTIGATION
Representative authorizes Aliant to obtain, from time to time, credit, financial
and other information regarding Representative (Including information regarding
prior criminal convictions) from other persons or entities, Including commercial
and consumer reporting agencies and private investigators. Representative
consents to such background investigation and releases Aliant from any and all
claims, demands or liabilities arising out of or in any way related to such
investigation.
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20. ASSIGNMENT
No interest or right of Representative under this Agreement shall be assigned or
transferred in any manner by Representative without the express written consent
of Aliant. Aliant may assign this Agreement at any time without prior written
notice to Representative. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties and their successors and
assigns.
21. COUNTERPARTS
This Agreement may be executed in one or more counterparts, by facsimile, each
of which shall be deemed an original and 211 of which, taken together, shall
constitute a single agreement. All signatories agree to execute a conformed copy
of this Agreement within thirty (30) days of the execution of counterparts
thereto.
22. MODIFICATION
This Agreement may be modified only by a writing which has been signed by both
parties.
23. INVALIDITY
Should any portion of this Agreement be held to be invalid, unenforceable or
void, such holding shall not have the effect of invalidating or voiding the
remainder of this Agreement and the parties agree that the portion held invalid,
unenforceable or void, shall, if possible, be deemed amended or reduced in
scope, or Otherwise be stricken from the Agreement, to the extent required for
the purpose of the validity and enforcement.
24. AUTHORITY
All signatories executing this Agreement represent that they have the full
right, capacity and authority to enter into this Agreement and perform the
Agreement.
25. WAIVER
No waiver of any term, covenant, condition or obligation of this Agreement or
any breach, shall be effective unless granted in writing. The waiver by any of
the parties of any term, covenant, condition or obligation of this Agreement or
of any breach of this Agreement shall not be deemed to be a waiver of any other
term, covenant condition or obligation of this Agreement or any prior,
concurrent or subsequent right.
26. CAPTIONS
The captions in this Agreement are for convenience only and shall not be
considered a part of this Agreement or affect the interpretation of any
provision.
27. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties and supersedes
all prior agreements, understandings and contracts between the parties with
respect to its subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized officers
Accepted this 1st day of September, 2005.
REPRESENTATIVE:
Print Name: Xxxx Xxxxxx
Signature: /s/ Xxxx Xxxxxx
---------------------------
Accepted this 16 day of September 2005.
ALIANT FINANCIAL SERVICES, INC.
Print Name: Xxxx X. Xxxxxxx, President
Signature: /s/ Xxxx X. Xxxxxxx
---------------------------
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ALIANT FINANCIAL SERVICES
REFERRAL AGREEMENT
This Referral Agreement ("Agreement") is made effective as of August
29, 2005 by and between Aliant Financial Services, Inc. located at 0000 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 ("AFS") and Xxxxxx Beaumont located
at 6015 00" Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000 ("Source").
WHEREAS, AFS provides credit and debit card processing services,
equipment, software and related goods and services (the "AFS Services"); and
WHEREAS. AFS wishes to expand its market share by retaining Source to
assist in marketing its AFS Services by having Source provide contact
information for persons or entities wishing to utilize the AFS Services
("Leads") from AFS.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. APPOINTMENT. Subject to the terms and conditions of this Agreement,
AFS hereby appoints Source as the exclusive provider of debit/stored value card
related leads to AFS, additionally Source appoints AFS as the exclusive provider
and processor of all credit card/bankcard processing. Source shall interact with
entities and individuals in order to obtain information from them as to whether
they are interested in purchasing the AFS Services. Source will obtain all
information and documentation reasonably required by AFS. Source acknowledges
that all Leads are to be approved by AFS in its sole discretion and Leads will
be able to utilize the AFS Services effective only upon such approval. AFS shall
have the right to utilize any third parties that it so chooses, in its sole and
absolute discretion, to provide part or all of the AFS Services, including, but
not limited to, soliciting merchant agreements, processing merchant applications
and providing credit and debit card processing. There shall he no obligation on
the part of AFS to compensate Source as to any prospective Lead with which AFS
has had prior contacts within (90) days from such referral, or which is
currently an active prospect of AFS.
2. FEES. Source shall be paid ten percent (10%) of the net processing
profit derived from all Leads that are approved to utilize the AFS Services.
Said compensation shall be paid on the net profits as defined as all amounts
collected from the Leads less any losses, chargebacks and costs incurred in
providing the AFS Services to the Leads. Residuals will only be paid on the
fifteenth business day of the month following the month of collection. It is
expressly understood and agreed that AFS shall be under no obligation to make
any payment to Source hereunder as to any Lead for which AFS is no longer
receiving, for any reason whatsoever, its corresponding recurring compensation
for such merchant credit card transaction processing from such referred bank or
financial institution.
3. INDEPENDENT CONTRACTORS. The relationship of AFS and Source is that
of independent contractors. Neither Source nor Source's employees, consultants,
contractors or agents are agents, employees, partners or joint ventures of AFS,
nor do they have any authority to bind AFS by contract or otherwise to any
obligation.
4. TERM. The initial term of this Agreement shall be for a period of
two (2) years, commencing on the date first set forth below. This Agreement
shall thereafter be automatically renewed for additional terms of one (1) year
each unless either party notifies the other no later than thirty (30) days prior
to the end of the current term that it does not wish to renew this Agreement.
Source shall be entitled to receive compensation under this Agreement for so
long as AFS is receiving its corresponding compensation for such Leads unless
Source commits a material breach of this Agreement which will terminate any
further right Source has to receive compensation.
5. INDEMNIFICATION. Source agrees to indemnify, defend, and hold
harmless AFS and its employees from and against any loss, liability, damage,
penalty or expense (including attorneys' fees, expert witness fees and cost of
defense) they may suffer or incur as a result of (i) any loss incurred by AFS
due to fraudulent or intentional conduct by Source; or (ii) any breach of this
Agreement by Source.
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6. SOURCE COVENANTS. Source will: (i) conduct business in a manner that
reflects favorably at all times on the Leads and the good name, good will and
reputation of AFS; (ii) avoid deceptive, misleading or unethical practices that
are or might be detrimental to AFS, the Leads or the public; (iii) make no false
or misleading representations with regard to AFS or the Leads; (iv) not publish
or employ, or cooperate in the publication or employment of, any misleading or
deceptive advertising material with regard to AFS or the Leads; (v) promote
proper use of Leads; or (v) not transmit any "seam" (unsolicited commercial
email or unsolicited bulk email).
7. NON-SOLICITATION OF LEADS. Without AFS' prior written consent (which
consent may be withheld in AFS sole and absolute discretion), Source shall not
knowingly cause or permit any of their employees, agents, principals,
affiliates, subsidiaries or any other person or entity (i) to solicit or
otherwise cause any Lead that has been accepted by AFS or its vendors to
terminate its participation in any of the AFS Services; or (ii) to solicit or
market services to any Lead that is already directly or indirectly provided any
of the AFS Services by AFS, whether or not such are provided under the terms of
this Agreement. Further, AFS shall not be permitted to grant permission to any
other stored value providers or related companies to use or reload any of their
products on the AFS provided terminal. This section shall apply during the term
of this Agreement and for five (5) years after any termination, cancellation or
expiration of this Agreement.
8. This Agreement will bind and inure to the benefit of each party's
permitted successors and assigns. Source may not assign this Agreement without
the written consent of AFS. AFS may assign this Agreement in its sole discretion
without the written consent of Source.
9. This Agreement 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. No amendment
or modification to this Agreement, nor any waiver of any rights hereunder, shall
be effective unless assented to in writing by both parties.
10. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida (irrespective of its choice of law
principles). The parties hereby agree that any suit to enforce any provision of
this Agreement or arising out of or based upon this Agreement or the business
relationship between the parties hereto shall be brought in Sarasota, 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. In any action
arising from the alleged breach of this Agreement, or to enforce this Agreement,
the final prevailing party will recover its reasonable attorneys' fees, costs
and expenses.
11. AFS disclaims all warranties, express or implied, including but not
limited to the implied warranties of fitness for a particular purpose and
merchantability. AFS shall have no liability in contract, tort, negligence or
otherwise to Source or any other third party arising out of any of products or
services provided under this Agreement, including, but not limited to due to the
vendors utilized by AFS. AFS shall not be liable to Source or any third party
for any liquidated, indirect, consequential, exemplary or incidental damages
(including damages for loss of business profits, business interruption, loss of
business information, and the like) arising out of this Agreement even if AFS
has been advised of the possibility of such damages.
12. The failure of either party to this Agreement to object to or to
take affirmative action WITH respect to any conduct of the other which is in
violation of the terms of this Agreement, shall not be construed as a waiver of
that conduct or any future breach or subsequent wrongful conduct. If any part,
term or provision of this Agreement is declared and determined by any court or
arbitrator to be illegal or invalid, such declaration and determination shall
not effect the validity of the remaining parts, terms or provisions. The various
headings in this Agreement are inserted for convenience only and shall not
affect this Agreement or any portion thereof. This Agreement may be executed in
two or more counter-parts and/or by fax, each of which shall be deemed an
original, all of which together shall constitute one and the same instrument.
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IN WITNESS THEREOF, this agreement has been duly executed by the
parties hereto, effective as of the date and year first above written.
DATED: August 16, 2005 Aliant Financial Services, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx - President
---------------------------
Name & Title
DATED: August 29, 2005
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx - President
--------------------------
Name & Title
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