Paygrip is a provider of payment card and other payment processing services (the “Services”) to businesses or individuals (“Merchants”) accepting, or seeking to accept, payment cards (e.g. Visa, MasterCard and Discover) as well as other payment services as provided by Viral Technologies from time to time; and
Paygrip seeks to enroll additional Merchants through various channels, including strategic referral partners (“Referrers”) maintaining affinity with groups (“Groups”) requiring payment processing services; and
Referrer has the means and professional contacts to refer qualified Merchant prospects to Paygrip exclusively, and wishes to do so in exchange for mutually agreed upon consideration as specified herein.
NOW, THEREFORE,
in consideration of the mutual covenants contained herein and other good and valuable consideration, the sufficiency of which are hereby affirmed by the Parties, the Parties hereby agree as follows:
in conjunction with and in close consultation with Referrer, will develop and execute a mutually agreeable plan to offer Services to the existing customer/user/member base (“Group”) of Referrer, or to such other Group with which Referrer maintains affinity. Additionally, a plan will be developed whereby new incoming Group members of Referrer will be offered the Services. The plan may include but not be limited to direct mail, email, print, telephone and web based promotion and/or joint press releases. In executing the plan, Referrer will comply with all laws and regulations applicable to Referrer and its activities under the plan, as well as with all rules adopted by the payment card associations from time to time.
All referred Merchants must execute a valid Paygrip/EVO merchant agreement (“Merchant Agreement”) and that agreement must be accepted by Viral Technologies and the acquiring financial institution identified in the Merchant Agreement (“Bank”), in the sole discretion of Paygrip and the Bank, prior to any provision of Services. The Merchant Agreement shall be the primary document governing use of Paygrip Services and ownership of the Merchant Agreement shall vest with Viral Technologies, provided however, that nothing contained herein shall give Viral Technologies any right to offer to a Group any products or services that compete in any way with the core products offered by Referrer of Group. All billing and support functions related to the Services shall be provided by Viral Technologies.
Referrer shall be compensated in the form of a monthly Residual commission (“Residuals”) based on 10% (percent) of the Gross Residual Profit (“GRP”) generated by Merchants referred to Viral Technologies by Referrer and ultimately accepted by Viral Technologies and enrolled into the system. Paygrip shall electronically remit to Referrer the Residuals and corresponding reporting on the 20th of each month, or the next business day thereafter. This section shall survive any termination of this Agreement provided Referrer is not in violation of the following section regarding re-solicitation of Merchants. Referrer expressly grants Viral Technologies a Right of Setoff and security interest in the Residuals described herein for any amount owed to Paygrip which is current or past due.
In further consideration of the payments of Residual Compensation by Paygrip to Referrer, Referrer hereby agrees that so long as a Referrer originated Merchants remain on the Viral Technologies platform, during any term of this agreement and/or any period thereafter, Referrer is prohibited from re-soliciting those Merchants for services competing Paygrip in any way. While reserving all rights to obtain injunctive relief through a court of competent jurisdiction to enforce the terms of this agreement, the Parties agree that Paygrip is likely to suffer damages from such a breach. The sum specified below is hereby agreed upon as a reasonable forecast of necessary compensation (and not as a penalty) for an injury suffered by Paygrip as a result of direct or indirect actions by Referrer that result in Merchants leaving the Paygrip platform, whether or not Referrer is actively affiliated with Paygrip or subsequent to a termination or expiration of this Agreement, then the liquidated damages shall be the greater of: (1) Two times the previous annual GRP from the Merchant Account in question; or (2) $1,000.00, and these amounts shall be in addition to any injunctive relief sought by Viral Technologies and any attorney’s fees and costs affiliated with the enforcement of this provision.
In performing its duties relative to this Agreement, Paygrip may disclose to Referrer intellectual property and/or confidential information such as, but not limited to, “payment engine” or other proprietary software, web based technology and other information or property such as processes, systems, concepts and documentation vital to Paygrip Services. This information is confidential and may not be used by Referrer (except as necessary in performing its obligations hereto) or shared with a third party and all associated intellectual property rights are retained by Paygrip. Referral Partner may not make copies of or distribute any software or other intellectual property or confidential info and may not modify, decompile or reverse engineer any of the intellectual property used by Paygrip. Additionally, Paygrip shall treat all intellectual property and information provided it by Referrer as confidential and not use such property except as necessary to perform its obligations relative to this Agreement.
This agreement commences on the effective date and continues for a term of thirty-six (36) months, after which it will automatically renew for successive twelve (12) month periods unless either party notifies the other in writing not less than ninety (90) days prior to the end of the then current term. Paygrip may terminate the Agreement upon thirty (30) days written notice to Referrer that it has failed to refer an average of five (5) Merchants per month for three consecutive months. Upon termination, each party will cease use of marks, internet links, intellectual property and proprietary information of the other.
Each Party shall defend, indemnify, and hold the other Party harmless from and against any and all claims, demands, actions, damages, liabilities, losses and expenses (including reasonable attorney’s fees) incurred as a result of its (and not the other party’s) negligence or willful misconduct.
Existing Paygrip Merchants are excluded from this Agreement unless prior written approval is obtained from Paygrip. Referrals that have been previously referred by other referral partners or Viral Technologies agents or representatives will not be accepted as a qualified referral and no referral fees will be paid on such Merchants.
This is only an agreement to refer Merchant prospects to Paygrip. Referrer will not make any representations to the contrary in print, web or mediums. Nothing in this Agreement shall create a joint venture, contractor, partnership, employment, or agency relationship between the Parties.
Referrer may not assign this Agreement, in whole or part, without obtaining prior written consent from Viral Technologies, which consent shall not be unreasonably withheld.
Subject to all the terms and conditions of this Agreement, Referral Partner hereby grants Paygrip a non-exclusive, non-transferable and non-sublicensable license to use the Referral Partner’s Marks solely in connection with the marketing and distribution of Paygrip Services. “Referral Partner Marks” shall mean solely the Referral Partner’s trade names, marks and logos. Subject to all the terms and conditions of this Agreement, Paygrip hereby grants Referral Partner a nonexclusive, non-transferable, non-sublicensable license to use the Paygrip Marks solely in connection with the marketing and distribution of Paygrip Services. “Paygrip Marks” shall mean solely the Paygrip trade names, marks and logos.
The internal laws of the State of Maine shall govern this Agreement, and the Parties hereby designate and consent to Cumberland County, Maine as the venue for resolution of any disputes between the Parties. The Parties agree that any claim which arises out of this Agreement, or the performance thereof, must be brought or made by either Party within 90 days of specific occurrence or such claim shall be irrevocably waived. NEITHER PARTY SHALL SEEK A JURY TRIAL IN ANY PROCEEDING OR ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANOTHER IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
Any amendment or supplement to this Agreement shall be in a writing duly executed by Viral Technologies and Referrer. If any provision of this Agreement is held to be illegal, invalid or unenforceable, each party agrees that the validity, legality and enforceability of the remaining provisions shall not be affected or impaired in any way. The waiver of, or failure by, either party to exercise any right provided for in this Agreement shall not be deemed a waiver of that right or any future or further right hereunder. The Viral Technologies Relationship Manager is not authorized to execute this Agreement on behalf of Viral Technologies. Any notice, request, demand or other communication required or permitted hereunder shall be deemed to be properly given when personally served in writing, or when delivered by overnight mail to the addresses contained herein. In any legal action, the prevailing party shall be entitled to reasonable attorney’s fees.