INDEPENDENT SALES ORGANIZATION AGREEMENT
FOR DAVIS THORPE & ASSOCIATES, INC. / BUSINESS FUNDING NOW
This independent sales organization agreement (this “ISO Agreement”), is made and executed on this (the “Execution Date”), between Davis Thorpe & Associate INC / www.BusinessFundingNow.com including its affiliates and assigns (collectively, “DTA”) and the independent sales organization, (the “ISO”).
WHEREAS, the ISO has completed and submitted to DTA for review and approval, a truthful and correct ISO application (the “ISOA”), the veracity of which DTA is relying upon in its determination to execute this ISO Agreement; and
WHEREAS, the ISO is in the business of marketing products similar to the Business/Personal Funding or Lines of Credit to merchants and in accordance with, and subject to, the terms and conditions outlined in this ISO Agreement, the ISO is entering this ISO Agreement so that it has the capability of offering the Funding and/or Credit to its clientele.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the DTA and the ISO (each individually a “Party” and collectively, the “Parties”), intending to be legally bound agree as follows.
INDEPENDENT CONTRACTOR; TAXES AND FEES. Each Party will act as an independent contractor of the other Party and will not be considered or deemed to be an agent, employee, partner or joint venture partner of the other Party. Each Party will have no authority to contract for or to bind the other Party in any manner (including with respect to any MSA) and will not represent itself as an agent or employee of the other Party. Each Party bears full responsibility (and the other Party will have no liability whatsoever) for any and all federal and state taxes, employment taxes, FICA and FUTA, unemployment insurance taxes, business expenses or any other required taxes, assessments or other fees arising in connection with such Party’s business or its performance under this ISO Agreement. Notwithstanding the foregoing, the Parties may agree to share in certain expenses associated with marketing the Business/Personal Funding or Lines of Credit. For the purposes of this ISO Agreement the term affiliate shall mean, with respect to a specified Party, any Party that directly or indirectly through one or more of its intermediaries, controls or is controlled by, or is under common control with, the specified Party (an
TERM AND TERMINATION. The term of this ISO Agreement shall begin on the Execution Date and will continue for an initial term of one (1) year, unless otherwise terminated by either party upon five (5) days written notice (the “Initial Term”). After the Initial Term, this ISO Agreement shall automatically renew for successive one (1) year terms unless otherwise terminated by either party upon ninety (5) days written notice (the “Extended Term” and, together with the Initial Term, the “Term”). This ISO Agreement may be terminated immediately by DTA, in its sole discretion, upon breach by the ISO of any of its obligations herein or in the event that DTA determines that the ISO has caused any detriment to the business of DTA or any of its affiliates, other programs, officers, employees or Merchants.
NEW PRODUCT MARKETING. DTA retains the right to market existing, add-on or any newly developed products to Referrals and the ISO shall be reasonably compensated for any Funding that occurs in connection therewith (“Alternative Funding”). The Commission to the ISO to be paid in the event of an Alternative Funding shall be determined by DTA in its sole discretion.
NON-INTERFERENCE/NON-COMPETE. During the Term and for a period two (2) years subsequent to the expiration of the Term (the “Expiration Date”), the ISO shall not, nor shall it permit, any subsidiary, affiliate or successor in interest or any of their respective officers, employees, agents or nominees to: (i) interfere, in any manner whatsoever, either directly or indirectly by any arrangement whatsoever, with any business relationship of DTA with any party (each an “DTA Client”); (ii) cause or attempt to cause any DTA Client to terminate its relationship with DTA or encourage such entity to utilize the services of any entity other than DTA, or interfere or impede DTA in securing any Renewal; (iii) provide any sort of funding to an DTA Client; or (iv) develop internally any products or services that compete with DTA. In the event that any court shall hold that the time, territory or any other provision of this Section constitutes an unreasonable restriction against the ISO, the ISO hereby agrees that the provisions hereof shall not be rendered void but shall apply as to such time, territory and to such other extent that such court may judicially determine constitutes a reasonable restriction in the circumstances involved. The Parties each request that any such court make a determination of what would constitute a reasonable restriction under the circumstances involved and to reform this ISO Agreement accordingly.
NON-SOLICITATION. Until the Expiration Date the ISO will not, nor will it permit any of its affiliates to, hire any of the current officers or employees or agents of DTA (an “Employee”) or any of its affiliates, so long as Employee is employed or retained by such Party or its affiliates, without the prior written consent of such Party.
REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants to the other Party that the statements contained in this Section 10 are true, correct and complete as of the date hereof: (i) each has all requisite corporate power and authority to enter into this ISO Agreement and to consummate the transactions contemplated hereunder; (ii) upon execution, this ISO Agreement will constitute its valid and binding obligation, enforceable in accordance with its terms; (iii) neither Party need give any notice to make any filing with, or obtain any authorization, consent, or approval from, any person in order for the Parties to consummate the transactions contemplated by this Agreement; (iv) the Party was solvent before, and will be solvent after, the consummation of this ISO Agreement; and (v) no order has been entered or petition presented by the Party for its winding up, insolvency, liquidation, or bankruptcy. The ISO shall promptly notify DTA in writing if it has any knowledge that any information submitted by any Merchant is not true, correct and complete in all respects. The ISO acknowledges and agrees that DTA is the sole owner of any receivables purchased in any Funding (“Receivables”) and the ISO shall have no rights to such Receivables. Each Party has complied, and will continue to comply, with all applicable federal, state and local laws, rules and regulations with respect to the activities of such Party contemplated by or undertaken in connection with this ISO Agreement.
CONFIDENTIAL INFORMATION. Each Party acknowledges that it may directly or indirectly disclose Confidential Information to one another in the course of negotiation of and performance of this ISO 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 ISO Agreement. Except as otherwise contemplated by this ISO Agreement, neither Party shall disclose the Confidential Information of the other Party to any third party without the prior written consent of the disclosing Party, and the duty of confidentiality created by this section shall survive any termination of this ISO Agreement.
“Confidential Information” shall mean all proprietary, secret or confidential information or data relating to either Party or its affiliates, operations, employees, products or services, 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 ISO 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 ISO Agreement; (iii) 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.
REMEDIES. In the event of a breach of Section 8, 9 or 11 of this ISO Agreement by the ISO or any of its affiliates, DTA shall be entitled to apply to a court of competent jurisdiction for an injunction to restrain such breach, without the need for a bond, and DTA shall have no obligation to pay any further ISO Commissions or other payment to the ISO that might otherwise become due after such breach, provided that ISO does not cure the breach within 10 calendar days after notice thereof. Any remedies hereunder shall be in addition to any other remedies available to DTA in law or in equity.
INDEMNIFICATION. During the Term each Party (the “Indemnifying Party”) will defend, indemnify and hold harmless the other Party, its officers, directors, employees, successors and assigns (collectively, the “Indemnified Parties”), in respect of any losses, damages, liabilities and expenses, including reasonable attorneys’ fees (collectively, “Damages”) incurred or suffered by any of the Indemnified Parties with respect to claims instituted by any third party (“Third Party Claim”) resulting from (a) any fraud or material misrepresentation of the Indemnifying Party contained in this ISO Agreement, or (b) any material breach by the Indemnifying Party of any of its obligations, covenants or other agreements pursuant to this ISO Agreement. In connection with any Third Party Claim, the Indemnifying Party may defend the Indemnified Party against the Third Party Claim with counsel reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iii) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedent adverse to the continuing business interests or the reputation of the Indemnified Party, (iv) no conflict of interest exists between the Indemnifying Party and the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. In the event any of the conditions above is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it reasonably may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), (B) the Indemnifying Party will reimburse the Indemnified Party for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses), and (C) the Indemnifying Party will remain responsible for any Damages the Indemnified Party may suffer resulting from the Third Party Claim, to the fullest extent provided in this Section 13. In any event, the Indemnified Party may retain separate co-counsel at its cost and participate in the defense of the Third-Party Claim and the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to any Third-Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld or delayed.
LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS ISO AGREEMENT OR OTHERWISE, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY WITH RESPECT TO THE SUBJECT MATTER OF THIS ISO AGREEMENT UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES. THE PARTIES AGREE THAT ANY AMOUNTS OWED TO ESE BY ANY MERCHANT SHALL NOT BE SUBJECT TO THE TWO PRECEDING SENTENCES. THE PARTIES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH HEREIN
NON-CIRCUMVENTION. Client and Consultant expressly agree that this Agreement constitutes a binding contract. Client, intending to be legally bound, hereby irrevocably agrees not to circumvent, avoid, bypass, or obviate Consultant, directly or indirectly, to avoid payments or fees, commissions, or any other form of compensations to Consultant in any transaction with any corporation, partnership, or individual, revealed by either party to the other, in connection with any projects, or currency exchanges, or any loans or collaterals, or any findings, or any financings, or any other transactions involving products, commodities, services, additions, renewals, extensions, rollovers, amendments, new contracts, re-negotiations, parallel contracts or agreements or third party assignments hereof. Therefore, Client shall not contact any investors or lenders, or other individuals or entities introduced by Consultant during the term of this Agreement without prior written consent from Consultant. If a transaction of any kind is consummated within twenty four (24) months of the termination of this Agreement whether debt or equity financing or any other transaction with an investor or lender or other individual or entity introduced directly or indirectly by Consultant to Client and/or Client enters into an agreement to acquire or be acquired by an entity or individual introduced directly or indirectly by Consultant to Client during the term of this Agreement, then that transaction shall be deemed to have been arranged by Consultant under this Agreement and Client shall remunerate Consultant as specified in Paragraph 3. This article survives the expiration or termination of this Agreement for any reason.
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 DTA or the ISO 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 mail, return receipt requested.
if to the ISO: If to DTA:
Name: Davis Thorpe & Associates INC / Business Funding Now
Address: 651 S. Mount Juliet Rd.
City/State/Zip: Mount Juliet, TN 37122
Phone: Phone: 800-552-6121
Fax: Fax: 615-393-6121
Email: Email: firstname.lastname@example.org
GOVERNING LAW. This ISO Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee (without regard to its principles of conflicts of laws) whose courts shall have sole jurisdiction over disputes arising hereunder. Should suit be brought to enforce or interpret any part of this ISO Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including expert witness fees and fees on any appeal.
JURY TRIAL WAIVER. The Parties to this ISO Agreement waive trial by jury in any court in any suit, action or proceeding on any claim arising out of or in connection with or in any way relating to this ISO Agreement, except where such waiver is prohibited by law or deemed by a court of law to be against public policy. The Parties acknowledge that each makes this waiver knowingly, willingly and voluntarily and without duress.
WHOLE AGREEMENT. This ISO 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. No amendment or modification to neither this ISO Agreement, nor any waiver of any rights hereunder, shall be effective unless consented to in writing by both Parties. Nothing in this ISO 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 ISO Agreement.
COUNTERPARTS. This ISO Agreement may be executed in counterparts and electronic signatures shall be deemed originals.
IN WITNESS WHEREOF, the Parties hereto have executed this ISO Agreement as of the Execution Date.