ISO Agent Sales Agreement
This Sales Agent Agreement (the “Agreement” ) is made and effective as of this date
and
WHEREAS , Chrome directly and through Licensees, purchases and outsources 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:
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 referring a merchant or lead to Chrome, Agent gives full rights to Chrome to manage, transfer, utilize, store, dispose of or perform background research with said merchant data as it sees fit at Chrome's sole discretion. Upon referring a merchant or lead to Chrome, Agent agrees to waive all rights and claims pertaining to merchant data according to Chrome's internal compliance guidelines.
Agent Compensation. In consideration for the services to be rendered by the Agent hereunder, Chrome may agree in writing or electronic mail to pay Agent such amount as is agreed from time to time by Chrome and Agent (the "Compensation"). Compensation may 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 on Chrome’s funding platform ("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. Default shall include, within the first thirty (30) payments, ANY payment issue (including taking additional funds) from a Merchant not limited to modified, missed, bounced, returned or stopped payments. In the event of such default, Agent must return the complete Compensation including any additional fees agent received in conjunction with this transaction. Agent hereby authorizes Chrome to withdraw the amount owed to Chrome via Automated Clearing House (ACH transfer) transaction from agent’s bank. Compensation must be returned to Chrome within 3 business days. In the event of a Default - should Agent not repay the full and entire Compensation within 3 business days - Agent agrees to pay to Chrome an additional $20,000.00 as a "Default Fee." Agent personally guarantees adherence to the Compensation guidelines.
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.
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.
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:
a. 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. It has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement.
c. It's performance of this Agreement will not violate any applicable law or regulation or any agreement to which it may now be bound;
e. It is not a party to any pending litigation that would have an impact on this Agreement and have never been fined or penalized by Visa, MasterCard, NACHA or any other association in the credit, payments or banking industry;
f. It is not on the Member Alert to Control High-Risk merchants list of MasterCard or any other similar list.
g. It shall comply with any and all policies and guidelines established by Chrome.
h. It shall accurately describe the Program to Merchants;
i. It shall Immediately inform Chrome of any changes that become known to Agent in the address, ownership, business or operations of itself or of any Merchant;
j. It shall deliver to Chrome all documents required as part of a Merchant Application together with each application, including, without limitation: Merchant Agreement, Application Form, voided Merchant check, Merchant statements, and any other documents required according to Chrome guidelines, such as they may be from time to time;
k. It shall, at the request of Chrome, assist with the collection of any amounts due to Chrome from Merchants referred by Agent; and
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. 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.
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, s o long as such officer, employee or agent remains employed or retained by Chrome or its a ffiliates.
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.
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.
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.
Confidential Information. Agent acknowledges that Chrome may directly or indirectly disclose Confidential Informat i on 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 relati ng 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 , inst ruction and/or procedural manuals, and the terms and conditions of t his 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 lea rned from an independent third party free of any restriction and w ithout 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.
Notices. Un less otherwise specified herein , any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and delivered perso nall y 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 cour ier or (iii) five days after being sent , if sent by first class registered or certified mail , return receipt requested.
If to Agent :
Name:
Address:
City / State / Zip:
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.
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 un le ss 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.
Relationship of Parties. Chrome and Agent are ind ependent 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 emp l oyment or workers compensation insu rance coverage re l ated to its employees and that Chrome shall have no responsibility for any such liabilities.
Limitation of Liability. Chrome shall not be liable hereunder to Agent or any third party for any liquidated, indirect, consequen tial , exemplary or inc idental damages (including damages for loss of business profits, business interruption, loss of business information , and the like) arising out of th is Agreement.
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.
Waiver. Chrome may waive any of its rights under this Agreement, so long as such right is waived expressly in writing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.
Chrome – Signature Agent (ISO) Signature
Print Name:
Title:
Schedule B
Agent Contact Info
Principal #1:
Full Name:
Direct Phone Number:
E-mail Address:
Home Address:
Business Address:
Principal #2
Full Name:
Direct Phone Number:
E-mail Address:
Home Address:
Business Address:
Business
Business Name:
DBA:
Operating Address:
City:
Website:
Please include all contact info for the person in charge on a deal-by-deal basis:
Full Name:
Direct Phone Number:
E-mail Address:
1. Government Issued Photo ID of Principal 1
2. Government Issued Photo ID of the Principal 2
3. Filled out W-9
4. Upload Copy of Voided Check
