Merchant Alliance Group, Inc. Agent's Marketing Agreement and Agent's Technology Support Agreement
THIS AGREEMENT is entered into by and between, MERCHANT ALLIANCE GROUP, INC., a California corporation, whose principal place of business is 3857 Birch Street, Suite 3004, Newport Beach, CA 92660. (hereinafter referred to as "Principal") and the undersigned party, (hereinafter referred to as the "Agent").
THIS AGREEMENT CONTAINS A BINDING, INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION. IF YOU ACCEPT THIS AGREEMENT, YOU AND MAG AGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION, AND GIVE UP THE RIGHT TO GO TO COURT INDIVIDUALLY OR AS PART OF A CLASS ACTION.
• Agent has relationships with potential customers
and special expertise related to the marketing and sale of products and
services useful in the payment processing industry; and
• Principal provides credit card, debit card, gift
card, loyalty card, and other payment processing services, ACH and POS
equipment, software and related goods and services (collectively, “Merchant
• Principal desires to expand its market share by engaging
Agent, under the terms of this Agreement, to promote the sale of the Principal
Services and to provide on-going marketing and sales support.
The parties therefore agree as
1. Promotion. Subject to the terms and conditions
of this agreement, Principal hereby appoints Agent as its non-exclusive
independent referral agent to promote the sale of the Principal Services to
businesses that may desire to purchase such services (“Merchant Services”).
Agent hereby accepts such appointment and agrees to devote its best efforts to
the marketing and promotion of such Principal Services.
2. Marketing. Agent will not distribute or publish
any marketing or other promotional materials or press releases utilizing any
name, trademark, trade name, logo, or other intellectual property rights of
Principal or any of its sponsoring institutions or VISA or MasterCard and the
sponsoring bank of Principal and Principal itself such as they may be from time
3. Compensation. The Agent's compensation shall be determined by his contract level authorization submitted to the Principal by the Agent's upline recruiting agent. The Agent's compensation shall be computed in accord with Principal's current Agent Promotion Guidelines which is published on Principal's website: www.merchantalliancegroup.com. The Agent will become entitled to override commissions for any agents that he or she recruits, trains and supervises on an ongoing basis. Any such override commissions shall be computed and paid pursuant to the Agent's contract level. The Agent hereby agrees that any debit for chargeback from the client merchants for business upon which the Agent has been paid, or for which an Agent's downline agent has been paid, or any other obligation due from the Agent to Principal, may be offset against compensation due to the Agent from Principal. Principal, at its sole discretion, reserves the right to prospectively change the company compensation plan without prior notice to or consent from its agents. In the event that Agent disputes any Residuals
payment received hereunder, Agent agrees to notify Principal within sixty (60)
days of the date of payment after which time Agent waives any claim against
Principal regarding the payment. Agent will be paid on a monthly basis on the first (1st) day of each month for client accounts acquired, starting forty-five (45) days after new account acquisition.
4. Duration of Referral Fees. For greater
certainty, the compensation referenced above shall be paid so long as:
a. The Term has not expired;
b. Agent is not in default hereunder or under any other
agreement with Principal or any of its affiliates;
c. No regulatory agency, such as VISA or MasterCard and no
bank or other entity has authority over Principal or Agent has intervened in
any way to prevent the payment of such fees;
d. Principal is continuing to receive its residual
compensation in respect of Customers referred to it hereunder; and
e. Customers are not in default of their obligations under
their agreements with suppliers of the Services.
5. Non-Solicitation. Agent agrees that, during the
Term hereof, so long as Agent is receiving fees hereunder and for a period of
two (2) years thereafter neither it nor any of its affiliates with directly or
indirectly itself or permit or assist any third party to as an employee,
employer, consultant, agent, principal, partner, stockholder, corporate
officer, director, or in any other individual or representative capacity to
call on, solicit, take away, or attempt to call on, solicit, or take away any
of the merchants, customers, merchants, or Referral Agents of Principal whether
referred by Agent or not. During such time, Agent shall also not
a. Entice, induce, or in any manner, influence any person
or entity who is, or shall be in the direct or indirect service of Principal to
leave the same for the purpose of engaging in a business or being employed by
or associated with any other business; or
b. Engage or participate in any business that is in
competition in any manner whatsoever with the business and/or contractual
relationships of Principal
6. Term. The term of this Agreement shall begin as
of the execution hereof and shall continue for a period of one (1) year after
which it shall renew for successive one-year terms automatically, unless
terminated in accordance with the terms hereof. Either party hereto shall have
the right to terminate this Agreement at the end of the then current Term, upon
thirty (30) days prior written notice to the other party. Principal may
terminate this Agreement at any time on thirty (30) days written notice to
Agent, provided, however, that if such termination is without default by Agent,
then Principal shall continue to pay the compensation contemplated herein
despite such termination, subject to the other provisions hereof the survive
7. Default. Either party shall have the right to
terminate this Agreement at any time if the other party breaches any material
provisions of this Agreement and fails to cure such breach within thirty (30)
days of its receipt of written notice thereof from the non-breaching party.
In the event of Default, each of the following occurrences
will constitute an Event of Default Under this Agreement:
a. Goodwill. Agent engages in any act of omission that may
damage the reputation, business, or goodwill of Principal in which case
Principal will terminate this Agreement on notice to Agent.
b. False Representation. Any representation or warranty
made by Agent or any of its employees, officers, or directors proves to have
been false or misleading in any material respect as of the date made, or
becomes false or misleading at any time, then the Principal may terminate this
Agreement with notice to Agent.
c. Regulatory Breach, Where Agent is in breach of the
Rules or where Bank determines that Agent is in breach of the Rules or other
applicable laws, then Principal may terminate this Agreement immediately for
cause and without opportunity for Agent to cure such breach.
d. Breach. Either party fails to observe any material
obligation specified in this Agreement, and such failure is not cured within 30
days of receipt of written notice thereof from the non-breaching party.
e. Non-Solicitation or Confidentiality Breach. Either
party breaches any Confidentiality Obligations or any Non-Solicitation
8. Relationship of Parties. Agent and Principal
agree that in performing their responsibilities pursuant to this Agreement they
are in the position of independent contractors. Nothing in this Agreement or
the parties’ relationship shall be construed to give either party the power to
direct and control the day-to-day activities of the other. The general conduct
of work performed by Agent and its representatives under this Agreement shall
be under Agent’s sole control. Agent further understands and agrees that Agent
shall be fully responsible for all tax obligations related to amounts received
hereunder. This Agreement is not intended to create, nor does it create and
shall not be construed to create, a relationship of partnership or joint
venture or agency or any association for profit between Agent and Principal.
Agent is not authorized hereunder to hold itself out as an agent of Principal
or any of its sponsoring institutions or suppliers or to inform or represent to
any person that Agent has authority to bind or obligate Principal or to
otherwise act on behalf of Principal. Agent shall not make any representation
or warranty, or create any liability or potential liability on behalf of
Principal. All expenses and disbursements, including those for travel and
maintenance, entertainment, training, office, employees, source deductions,
taxes, employee taxes or remittances, clerical and general selling expenses
that may be incurred by Agent in connection with this Agreement shall be borne
wholly and completely by Agent, and Principal shall not be in any way
responsible or liable therefore. Except as otherwise provided, each party shall
bear its own administrative costs and overhead expenses arising out of its
performance of this Agreement.
9. Assignment. Neither party shall assign,
delegate, subcontract, license, franchise, or in any manner attempt to extend
to any third party any right or obligation under this Agreement, except as
otherwise permitted herein, without he prior written consent of the other
party, such consent not to be unreasonably withheld; provided, however, that
Principal may assign this Agreement and its rights hereunder to an Affiliate or
to a purchaser of all or substantially all of its assets or equity, or in the event of a merger, consolidation, reorganization or change in control.
Notwithstanding any other provisions in this Agreement, Agent may assign or
sell any part or all of its rights to its compensation under this Agreement to
a third party; provided however, Principal shall first have the right to
purchase such compensation rights from Agent. In the event Agent seeks to sell
any part or all of its right to compensation to a third party, it shall provide
Principal with written notice of the material terms of the third party offer,
and Principal shall have thirty (60) days within which to notify Agent as to
whether it will match said third party offer. If Principal elects to match the
third-party offer, Agent shall sell its rights to compensation to Principal. In
the event Principal does not elect to exercise this right of first refusal,
Agent may sell Agent’s compensation to the third-party offeror on the same
terms and conditions as set forth in the written notice to Principal.
Notwithstanding any other provisions in this Agreement, Agent, if an
individual, upon the occurrence of his/her death may pass on his/her rights to
residuals under this Agreement by will, trust, or any other method to anyone
he/she chooses in his/her sole and absolute discretion.
10. Notices. All notices and other communications
required or permitted under this Agreement shall be in writing and given by
personal delivery, telecopy (confirmed by mailed copy), or certified, return
receipt first class mail, postage prepaid, sent to the address for each party.
11. Entire Agreement; Binding Effect. This
Agreement, including all schedules, exhibits and attachments thereto, sets
forth the entire agreement and understanding of the parties hereto in respect
of the subject matter contained herein, and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations, or
warranties, whether oral or written, by any officer, partner, employee or
representative of any party hereto.
12. Confidential Information. Each party acknowledges
that it may directly or indirectly disclose Confidential Information to the
other party in the course of negotiation of and performance of this Agreement.
All such Confidential Information disclosed hereunder shall remain the sole
property of the disclosing party (or other third party), and the receiving
party shall have no interest in, or rights with respect thereto, except as set
forth herein. Each party agrees to treat such Confidential information with the
same degree of care and security as it treats its most confidential
information. Each party may disclose such Confidential Information to employees
and agents who require such knowledge to perform services under this Agreement.
Except as otherwise contemplated by this Agreement, neither party shall
disclose the Confidential Information of the other party to any third party
without prior written consent of the disclosing party, and the duty of
confidentiality created by this section shall survive any termination of the
a. “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, cardholder 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 receiving party 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. 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, information relating
to Merchant Services accounts of Customers shall be the property of Principal.
13. Indemnification. Each party agrees to indemnify,
defend, and hold harmless the other party, its employees, agents, from and
against any loss, liability, damage, penalty, or expense (including reasonable
attorneys’ fees and cost of defense) they may suffer or incur as a result of
a. Any failure by such party or any employee or agent of
such party to comply with the terms of this Agreement;
b. Any warranty or representation made by such party to
the other party being false or misleading; or
c. Any representation, warranty, or undertaking made by
such party or any employee or agent of such party to any third person other
than as specifically authorized by this Agreement. Each party shall promptly
notify the other of any claim or threat of claim of which such party becomes
aware and that may give rise to a demand for indemnification under this
14. LIMITATION OF LIABILITY. Under no circumstances
shall either party be liable to the other for any indirect, punitive, or
consequential damages. Under no circumstances shall the liability of principal
hereunder exceed the amount of referral fees paid hereunder during the six (6)
month period prior to the event giving rise to liability.
15. Attorney Fees. As a consequence of any action,
suit, or proceeding brought under this Agreement, the prevailing party shall be
entitled to its costs, expenses, and if law permits, its reasonable attorney’s
fees. In the event that Principal retains an attorney to enforce compliance
with the terms hereof or to collect any amounts owing from Agent hereunder,
Principal may deduct the fees for such attorney from amounts payable to Agent
16. Governing Law. This Agreement shall be governed
by the laws of the state in California, whose courts, in the
county of the Principal, shall have sole and exclusive jurisdiction over
disputes arising hereunder.
17. Buyout. Principal does not offer the option of Agent selling their portfolio back. In
the event that the Principal is sold or sells their book of business resulting
in a buyout, Agent will receive the same multiple of the buyout less 20% discount
with the same distribution terms that the Principal receives.
18. State and
• withhold FICA (Social Security and Medicare
taxes) from Agent's payments or make FICA payments on Agent's behalf
• make state or federal unemployment compensation
contributions on Agent's behalf, or
• withhold state or federal income tax from Agent's
shall pay all taxes incurred while performing services under this
Agreement—including all applicable income taxes and, if Agent is not a
corporation, self-employment (Social Security) taxes. Upon demand, Agent shall
provide Principal with proof that such payments have been made.
19. Fringe Benefits.
Agent understands that neither Agent nor Agent's employees or contract
personnel are eligible to participate in any employee pension, health, vacation
pay, sick pay, or other fringe benefit plan of Principal.
shall make no state or federal unemployment compensation payments on behalf of Agent
or Agent's employees or contract personnel. Agent will not be entitled to these
benefits in connection with work performed under this Agreement.
shall not obtain workers' compensation insurance on behalf of Agent or Agent's
employees. If Agent hires employees to perform any work under this Agreement, Agent
will cover them with workers' compensation insurance to the extent required by
law and provide Principal with a certificate of workers' compensation insurance
before the employees begin the work.
22. Insurance. Principal
shall not provide insurance coverage of any kind for Agent or Agent's employees
or contract personnel.
23. Modifying the
Agreement. This Agreement may be modified or
replaced by a writing or an amended agreement signed by both parties.
24. Assignment and
Delegation. Either Agent or Principal
may assign rights and may delegate duties under this Agreement.
25. Entire Agreement. This Agreement and any exhibits as may have been referenced herein, together with the policies, procedures and rules of Principal, if any, as may be promulgated from time to time on the Principal's website at www.merchantalliancegroup.com or via group email blast, supersedes all prior agreements between Principal and the Agent and supersedes all negotiations and communications prior to the signing and acceptance hereof.
26. Construction. Should any part of this agreement be deemed, held or ruled to be invalid, illegal or otherwise unenforceable, the remainder of this agreement shall remain in full force and be enforceable by its terms without the stricken portions.
27. Offer and Acceptance. This Agreement shall be executed electronically by Agent via Principal's online web site at www.merchantalliancegroup.com. When executed and electronically submitted by Agent to Principal, this Agreement will constitute an offer by Agent to become an associate with Principal as per the terms and conditions herein above stated. Said offer shall be deemed accepted by Principal unless: (1) Agent withdraws this offer in writing and delivers said withdrawal notice prior to loging on to Principal's website; or, (2) Agent cancels his electronic payment authorization with his credit card provider; or, (3) Principal notifies Agent of its rejection of his offer to join Principal within Ten (10) Days of Associate's acceptance date.
28. Right to Rescind. Agent may for any reason rescind this offer to join Principal by providing written notice of said rescission via email to email@example.com within Ten (10) Day of his acceptance date indicated herein.
29. Refunds. Agent understands that the recurring annual $49 Association Fee is non-refundable once the payment has been initiated.
Agent acknowledges that he or she has read and understood this Agreement in full and has been advised and afforded the opportunity to seek legal counsel and/or have this Agreement translated to his or her native language before signing. In signing below, Agent agrees that he or she has only paid the annual recurring Association Fee of $49 for use of Principal, Principal's website, and/or software. Agent further acknowledges that he or she is not obligated now or in the future to purchase any merchant services or marketing materials from Principal as a condition of joining or remaining an Agent of Principal hereunder.