ISO Agent Sales Agreement
This Sales Agreement (the “Agreement”) is made and effective as of February 19, 2020 by and between Chrome Capital Funding, Inc. (hereinafter “Chrome”) with offices at 456a Central Avenue Suite 139Cedarhurst, NY 11516 and (hereinafter “Agent”) with offices at .
WHEREAS, Chrome directly and through Licensees, purchases and out sources the purchase from merchants (“Merchants”) a percentage of each future credit card, debit card, bank card and/or other banking deposits, checks and electronic deposits due to the Merchants for an amount agreed to by Chrome and the Merchants (“Program”);
WHEREAS, Agent wishes to promote the Program, assist with its implementation and refer potential Merchants to Chrome that may wish to participate in the Program, all subject to the terms hereof.
NOW, THEREFORE this Agreement witnesses that in consideration of the mutual covenants by each of the parties hereto, the parties agree as follows:
1. Agent Obligations. Agent will market and promote the Program and assist interested parties (a “Lead”) in completing and submitting to Chrome an application, in a form acceptable to Chrome. Agent agrees that each Lead referred by Agent shall comply in full with the requirements set forth in the rules and policies of Chrome as they may exist from time to time. Chrome will evaluate and, at its sole discretion, accept or deny such applications. Agent shall not be the only or exclusive sales agent of the Program for Chrome and Chrome may, at its sole discretion, retain the services of other sales agents. Upon the Agent referring a Lead to Chrome for participation in the Program, Chrome shall then and thereafter have the sole right to negotiate with such Lead to enter into a Merchant Agreement and Agent shall not refer such lead to any other entity having a business similar to the Program.
2. Agent Compensation. In consideration for the services to be rendered by the Agent hereunder, Chrome agrees to pay Agent such amount as is agreed from time to time by Chrome and Agent (the “Compensation”). Compensation shall be paid in respect of each payment by Chrome to Merchant referred to Chrome by Agent, and which Merchant has entered into a Merchant Agreement in a form prescribed by Chrome (“Merchant Agreement”) as the direct result of the referral by Agent and by no other third party. In the event that a Merchant terminates or is in default of its obligations under a Merchant Agreement, no ongoing Compensation shall be paid to Agent in respect of such Merchant. If, after payment by Chrome to Agent of any Compensation, a Merchant referred by Agent fails to pay any obligation due from it to Chrome, Agent shall repay to Chrome any such Compensation to the extent of any such amount due to Chrome from such Merchant and Chrome may offset any such amount against any other Compensation due from Chrome to Agent.
3. Merchant Application and Agreement. Only Chrome shall be authorized to accept, ratify or finalize any Merchant Agreement and include a Merchant in the Program. Chrome may, at its sole and absolute discretion, decline to accept any Merchant to the Program for any reason whatsoever. Under no circumstances shall Agent hold out to any Merchant or other third party that it has any right to (a) accept or decline a Merchant application for a Merchant Agreement: (b) modify in any way or accept any Merchant Agreement; (c) include a Merchant in the Program; or (d) bind Chrome legally or otherwise. No agreement made by or through Agent or its affiliates shall be legally or otherwise binding on Chrome until accepted in writing by a duly authorized officer of Chrome. Agent shall be solely responsible for any and all expenses incurred by Agent in performance of services hereunder including, but not limited to, expenses related to any Agent’s employees or consultants. Agent acknowledges and agrees that Chrome may, at its sole discretion, amend the terms of the Program, including, without limitation the pricing thereof, without prior notice or consent from Agent. Chrome may at its sole discretion and without remuneration to Agent directly contact any Merchant it has funded and offer any of Chrome’s other programs or services.
4. Agent Identification. In the course of carrying out its obligations hereunder, Agent shall clearly identify itself with its own corporate name, but also disclosing to all third parties that it is an agent of Chrome for the promotion of the Program. Agent agrees that its actions and the actions of its shareholders, affiliates (as defined below), directors officers, employees, independent contractors, representatives, agents, principals and associates under or in connection with this Agreement (collectively “Agent Parties”) shall be governed, controlled and directed by, and shall be in full compliance with, the terms hereof and shall at all times and in respect of all parties and third parties be construed as actions taken by Agent subject to the terms hereof. Agent shall be responsible to ensure that all Agent Parties are adequately trained to perform hereunder and conform to all of the provisions hereof.
5. Representations, Warranties and Covenants of Agent. Agent represents, warrants and covenants to and for the benefit of Chrome, that as of the date hereof and during the term hereof:
During the term of this Agreement, Sales Agent shall perform the following services for CHROME CAPITAL FUNDING or any subsidiary or subsidiaries of CHROME CAPITAL FUNDING, as same may be directed and supervised by the senior management of CHROME CAPITAL FUNDING (David Margolies) and any other authorized representatives of CHROME CAPITAL FUNDING as may be provided to Sales Agent during the term of this Agreement in writing (“Services”):
6. Term and Termination. The term of this Agreement shall begin on the date appearing on the first page hereof and may be terminated by either party at any time upon written notice of termination to the other party hereto.
7. Non-Interference and Non-Competition. During the term of this agreement, Agent and Agent Parties shall not, nor shall they permit any respective subsidiary, affiliate or successor in interest of their respective officers, employees, agents or nominees to; (i) interfere, in any manner whatsoever, either directly or indirectly by any arrangement whatsoever, with Chrome’s contractual relationship with any Merchants; or (ii) cause or attempt to cause any Merchant or other Chrome client to terminate its relationship with Chrome. For the purposes of this Agreement the term “Affiliate” or “affiliate” shall mean, with respect to a specified party, any party that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the specified party. During the term of this Agreement and for a period of one year following the termination of this Agreement, Agent agrees that Agent and Agent Parties shall not engage, directly or indirectly in any Competitive Business in the territory consisting of the States of Connecticut, New York and New Jersey. “Competitive Business” shall mean any other business that is the same as or similar to Chrome’s business on the date of this Agreement or during the term hereof.
8. Non-Solicitation. Agent agrees that throughout the term of this Agreement and for three years thereafter, none of Agent Parties, nor any of their respective affiliates shall without the prior written consent of Chrome, hire any of the current officers or employees or agents of Chrome or any of its Affiliates, so long as such officer, employee or agent remains employed or retained by Chrome or its affiliates.
9. Indemnification. Agent agrees to indemnify, hold harmless and defend Chrome and its directors, officers, employees, agents and licensees (individually and collectively, “Indemnified Party”) from and against any and all claims, damages, losses, liabilities and expenses (including all fees and charges of internal or external counsel with whom any Indemnified Party may consult and all expenses of litigation and preparation therefor (“Losses”), which any Indemnified Party may incur or which may be asserted against any Indemnified Party by any person, entity or governmental authority (including any person or entity claiming derivatively on behalf of the Agent), in connection with or arising out of or relating to the matters referred to in this Agreement whether (a) arising from or incurred in connection with any breach of a representation, warranty or covenant by the Agent being unfulfilled, false or misleading, (b) acts of fraud, gross negligence or willful misconduct, or (c) arising out of or resulting from any suit, action, claim, proceeding or governmental investigation, pending or threatened, whether based on statute, regulation or order, or tort, or contract or otherwise, before any court or governmental authority caused by the actions or inactions of the Agent; provided, however, that the foregoing indemnity agreement shall not apply to any claims, damages, losses, liabilities and expenses solely attributable to an Indemnified Party’s gross negligence or willful misconduct. Agent agrees that Chrome shall have the right to participate in and control the defense of any such claim through counsel of its own choosing. Agent shall reimburses Chrome for reasonable attorney fees for said defense. Agent shall at any time or from time to time execute and deliver such further instruments, and take such further action as Chrome may reasonably request, in each case to further effect the purposes of this Agreement. The indemnity agreement contained in this Section shall survive the termination of this Agreement, payment of any amounts hereunder and the assignment of any rights hereunder.
10. Remedies. Without limiting the foregoing, in the event of a breach of this Agreement by Agent or any Agent Party, Chrome shall be entitled to apply to a court of competent jurisdiction for an injunction to restrain such breach, without the need for bond, and Chrome shall have no obligation to make any further Compensation or other payment to Agent that might otherwise come due after such breach. Any remedies hereunder shall be in addition to any other remedies available to Chrome in law or in equity.
11. Assignment; Successors; Amendments. This Agreement shall be binding upon and inure to the benefit of successors and assigns of the parties hereto. With the exception of amendments to the Program and Compensation, which may be made at the sole discretion of Chrome, this Agreement may be amended only by a written agreement executed by both parties hereto.
12. Confidential Information. Agent acknowledges that Chrome may directly or indirectly disclose Confidential Information to Agent in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of Chrome, and Agent shall have no interest in, or rights with respect thereto, except as set forth herein. Agent shall not disclose such Confidential Information to any third party without the prior written consent of Chrome, and the duty of confidentiality created by this section shall survive any termination of this Agreement. “Confidential Information” means all proprietary, secret or confidential information or data relating to Chrome and its affiliates, operations, employees, products or services, clients, customers or potential customers. Confidential Information shall include customer lists, card member 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: (i) already known to the Agent free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) publicly available through no wrongful act of Agent; (iv) independently developed by the Agent without reference to any Confidential Information of Chrome; or (v) required to be disclosed by law.
13. Notices. Unless otherwise specified herein, any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and delivered personally or sent by internationally recognized overnight courier, registered or certified mail (postage prepaid with return receipt requested) to the address of Chrome or Agent set forth below. Such notices or other communications shall be deemed received (i) on the date delivered, if delivered personally, (ii) on the business day after being sent by an internationally recognized overnight air courier or (iii) five days after being sent, if sent by first class registered or certified mail, return receipt requested.
If to Agent:
If to Chrome:
Chrome Capital Funding Inc.
456a Central Avenue Suite 139
Cedarhurst, NY 11516
Attn: David Margolies
14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York (without regard to its principles of conflicts of laws) whose courts shall have sole jurisdiction over disputes arising hereunder. The parties hereto agree that issues arising hereunder are too complex to be addressed by a jury and covenant to elect for a non-jury trial in the event of a trial relating hereto. Any controversy between Chrome and Agent, including, but not limited to, those involving the construction or application of any of the terms, provisions or conditions of this Agreement or otherwise arising out of or relating to this Agreement, shall at the request of Chrome be settled by binding arbitration in accordance with the then-current commercial arbitration rules of the American Arbitration Association (AAA) or Judicial Arbitration and Mediation Service (J.A.M.S.), three (3) neutral arbitrators will be selected in a manner consistent with the AAA Arbitration Rules and Mediation Procedures, and judgment on the award rendered by the arbitrator(s) may be rendered by any court having jurisdiction thereof. Chrome and Agent shall share the costs of the arbitrator equally but shall each bear their own costs and legal fees associated with the arbitration. The location of the arbitration shall be in New York County, New York. In the event that any of the parties hereto institutes any action, arbitration, suit or proceeding to enforce the provisions of this Agreement, or for breach thereof, or to declare the right of the parties with respect thereto, the prevailing party shall be entitled to recover, in addition to damages, injunctive or other relief, reasonable costs and expenses including, without limitation, costs and reasonable attorney’s fees incurred in the furtherance of such action, arbitration, suit or proceeding.
15. Whole Agreement. 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. Nothing in this Agreement, express or implied , is intended to confer or shall be deemed to confer any rights or remedies upon any persons or entities not parties to this Agreement.
16. Relationship of Parties. Chrome and Agent are independent contractors hereunder and their relationship shall not be construed as any form of employer/employee relationship, joint venture or partnership. Chrome intends no contract of employment, express or implied, with either Agent or any Agent Party; neither Agent nor any Agent Party has obtained any right to employment or compensation as an employee or any other benefits of an employee by way of this Agreement. Agent agrees that it shall be solely responsible for the purchase and maintenance of employment or workers compensation insurance coverage related to its employees and that Chrome shall have no responsibility for any such liabilities.
17. Limitation of Liability. Chrome shall not be liable hereunder to Agent 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.
18. Severability. If any provision hereof is for any reason determined to be invalid, such provision shall be deemed modified so as to be enforceable to the maximum extent permitted by law consistent with the intent of the parties as herein expressed, and such invalidity shall not affect the remaining provisions of this Agreement, which shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.
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Document Name: ISO Agreement
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