SECTION 1: INDEPENDENT SALES ORGANIZATION RESPONSIBILITIES

1.1 The Independent Sales Organization agrees to (i) market and promote the Program, (ii) assist prospective Merchants in submitting complete applications and supporting documentation to Lendocity in acceptable forms, (iii) gather contact information, bank statements no older than 90 days (unless otherwise requested), and other relevant details about prospective Merchants as required by Lendocity, (iv) include Lendocity in its preferred vendor list in all marketing materials for prospective Merchants, and (v) provide approved solicitation materials to prospective Merchants.

1.2 The Independent Sales Organization must not make any commitments, representations, or warranties on behalf of Lendocity or bind Lendocity without Lendocity's express, prior written consent.

1.3 The Independent Sales Organization shall adhere to all Lendocity policies and procedures related to soliciting prospective Merchants. The Independent Sales Organization must not alter any term, amount, or existing language within any Merchant Agreement without Lendocity's prior written consent. Lendocity reserves the right to approve or disapprove any Independent Sales Organization marketing materials featuring Lendocity's name. If Lendocity disapproves of any marketing material, the Independent Sales Organization must promptly revise it to comply with Lendocity's requirements atthe
Independent Sales Organization 's expense.

1.4 The Independent Sales Organization must not knowingly refer any prospective Merchants to Lendocity that it knows to be insolvent based on financial statements, personal knowledge, background search results, credit reports, bankruptcy searches, or any other documentation or information, written or verbal, provided by the prospective Merchant to the Independent Sales Organization in an effort to apply for financing through the Independent Sales Organization.

1.5 The Independent Sales Organization shall maintain the highest standards of professionalism, avoid misleading or deceptive sales practices, and not knowingly provide Lendocity or any Merchant with false or misleading information.

1.6 The Independent Sales Organization shall make its best efforts not to refer prospective Merchants to Lendocity (i) who are existing Lendocity clients, whether in the Program or otherwise, (ii) that have been referred to Lendocity by a different Independent Sales Organization , or (iii) that have previously contacted or been contacted by Lendocity or another Independent Sales Organization (collectively "Existing Merchants"). If the Independent Sales Organization submits an application for an Existing Merchant, Lendocity shall notify the Independent Sales Organization , and the Independent Sales Organization shall not be entitled to any Compensation under this Agreement for any Existing Merchant
applications or information submitted.

1.7 As long as the Independent Sales Organization is receiving Compensation, the Independent Sales Organization must immediately notify Lendocity (i) if it becomes aware of any information about a Merchant's insolvency, bankruptcy, change of ownership or business, and/or (ii) if the Independent Sales Organization becomes aware of any adverse information concerning a Merchant's financial condition or any information indicating that a Merchant's participation in the Program is not in good faith.

 

SECTION 2: LENDOCITY'S RESPONSIBILITIES

2.1 Upon receiving a prospective Merchant referral from the Independent Sales Organization , Lendocity will contact the Independent Sales Organization if the Application form is incomplete. Lendocity reserves the right to accept or reject a prospective Merchant based on its established criteria. Lendocity may terminate any Merchant Agreement according to the terms within the Merchant Agreement at any time. Prospective Merchants can participate in the Program only after Lendocity approves their application and a Merchant Agreement is executed.

2.2 The Independent Sales Organization will not be liable for Losses, as defined herein as any loss incurred by Lendocity due to any reason attributable to a Merchant, including but not limited to uncollected chargebacks and fees. However, the Independent Sales Organization will be liable to Lendocity for any amount incurred due to the Independent Sales Organization 's or its sales agent's breach of this Agreement, negligence, or fraud, as well as other items outlined in Article VI. The Independent Sales Organization must promptly notify Lendocity of any information it is aware of concerning any Merchant that could indicate potential Losses.

2.3 The Parties acknowledge and agree that all rights, titles, and interests in all Merchant Agreements are solely vested in Lendocity.

2.4 Lendocity will determine all fees charged to Merchants. The term "Fees" refers to any and all fees arising from the Merchant Agreement and the ongoing relationship between Lendocity and the Merchant. These fees include, but are not limited to, fees associated with ACH debits. Lendocity may revise Merchant fees at its discretion. All fees must be clearly and conspicuously disclosed and agreed upon in writing within the Merchant Agreement.

 

SECTION 3: INTELLECTUAL PROPERTY AND CONFIDENTIALITY

3.1 Neither Party shall use the other's name or trademarks in any promotional or marketing materials without the other Party's prior written consent.

3.2 The Parties acknowledge that, during their performance of duties under this Agreement, either Party may communicate Confidential Information to the other, which is confidential, proprietary, and considered trade secrets of the disclosing Party. Confidential Information includes, but is not limited to, information concerning the Program, know-how, technology, techniques, business, or marketing plans.

3.3 Confidential Information excludes information that: (a) is public knowledge at the time of disclosure; (b) becomes public knowledge or known to the receiving Party after disclosure, other than through a breach of obligations under this section or a third party's breach of confidentiality obligations; (c) was known by the receiving Party prior to disclosure, other than through a third party's breach of confidentiality obligations; (d) is independently developed by the receiving Party; or (e) is required to be disclosed by law, court order, or subpoena. However, the receiving Party must promptly inform the disclosing Party of any required disclosures.

3.4 As a condition for receiving Confidential Information, the receiving Party agrees to: (1) not disclose any portion of the disclosing Party's Confidential Information to third parties; (2) not use the disclosing Party's Confidential Information except to perform its duties under this Agreement or with the disclosing Party's express prior written consent; (3) only disclose the Confidential Information to employees and agents who need access for internal business purposes; (4) ensure its employees and agents comply with the confidentiality restrictions in this Agreement; and (5) protect the confidentiality of the Confidential Information with at least the same degree of care it would use for its own confidential information, exercising no less than reasonable care to prevent disclosure.

3.5 The receiving Party must promptly notify the disclosing Party of any unauthorized disclosure or use of the Confidential Information and cooperate in preventing or remedying such unauthorized use or disclosure. Upon termination of this Agreement, the receiving Party must return or destroy all Confidential Information (including copies) within 30 days.

3.6 Lendocity reserves the right to inspect the Independent Sales Organization 'S premises and sales personnel's premises to ensure proper protection of Lendocity's Confidential Information from disclosure, damage, or theft.

3.7 All media releases, public announcements, and other disclosures by either Party relating to this Agreement or its subject matter, excluding internal announcements or those required by law, shall be coordinated with and approved by the other Party prior to release. The receiving Party must also refrain from removing, overprinting, or defacing any copyright, trademark, logo, proprietary identification, or confidentiality notices from any originals or copies of the disclosing Party's Confidential Information.

3.8 In the event of a breach of this Article III, the Parties agree that the non-breaching Party will suffer irreparable harm and monetary damages would be impossible to calculate. As such, the non-breaching Party is entitled to injunctive relief in addition to other rights, without the necessity of proving actual damages.

 

 SECTION 4: INDEPENDENT SALES ORGANIZATION COMPENSATION

4.1 Lendocity shall compensate Independent Sales Organization for services rendered in accordance with the Independent Sales Organization Compensation Schedule, attached as Schedule A (the "Compensation"). Lendocity shall provide a written report detailing the basis for each Compensation payment. If an Independent Sales Organization disputes any Compensation, it must inform Lendocity within 45 days of receipt; otherwise, Independent Sales Organization waives any claim against Lendocity regarding such Compensation. If this Agreement is terminated by the Independent Sales Organization or by Lendocity due to an Event of Default, Lendocity has no further obligation to pay Compensation, and the Independent Sales Organization has no further right to receive Compensation
after the termination date.

4.2 If Independent Sales Organization refers a prospective Merchant to Lendocity, but the prospective Merchant does not execute a Merchant Agreement within 90 days of referral, Independent Sales Organization has no right to Compensation regarding such prospective Merchant, regardless of whether the prospective Merchant enters into a Merchant Agreement with Lendocity thereafter.

4.3 If a third party assists Independent Sales Organization in referring a Merchant to Lendocity, Lendocity is not required to pay compensation to such third party, who shall look solely to Independent Sales Organization for compensation.

4.4 Independent Sales Organization is responsible for paying all federal, state, and local income taxes, Social Security and Medicare taxes, and any employment or business taxes to any taxing authority. Independent Sales Organization must obtain necessary licensing or permission from relevant licensing authorities before soliciting Merchants within jurisdictions requiring licenses. Independent Sales Organization agrees to complete and return an IRS Form W-9 or similar forms as required by Lendocity.

 

SECTION 5: NON-SOLICITATION

5.1 During the term of this Agreement and for 1 year after its termination, neither Independent Sales Organization , nor any salesperson, principal, or Independent Sales Organization of Independent Sales Organization will directly or indirectly solicit for itself or any third party, or contract with any Merchant for any product or service similar to the Program or any service offered by Lendocity.

5.2 During the term of this Agreement and for 1 year after its termination, Independent Sales Organization will not solicit or attempt to obtain any Lendocity employee, Independent Sales Organization , syndication partner, participant to a participation agreement, or agent to work for or contract directly with Independent Sales Organization.

5.3 For clarification, the term "Merchant" in this Section includes all parties to Merchant Agreements with Lendocity, regardless of whether such Merchants were referred to Lendocity by Independent Sales Organization or a third party.

 

SECTION 6: INDEMNIFICATION AND LIMITATION OF LIABILITY

6.1 Independent Sales Organization agrees to indemnify, defend, and hold Lendocity and its Indemnified Persons harmless from and against any and all claims, demands, liabilities, and damages arising out of or related to specific instances outlined in this Agreement. Independent Sales Organization will promptly notify Lendocity of any claim, demand, suit, or threat of suit which may give rise to a right of indemnification under this Agreement.

6.2 In no event will any Party be liable for any special, incidental, consequential, or punitive damages of any nature or for any reason whatsoever. The liability of Lendocity under this Agreement for any claims will not exceed the amount of Compensation paid to Independent Sales Organization for the preceding 4-month period measured from the date the liability accrues.

6.3 This Agreement does not constitute or represent any form of employment of the Independent Sales Organization by Lendocity. Independent Sales Organization shall act solely as an independent contractor and shall not be deemed an agent, partner, or joint venture with Lendocity. Independent Sales Organization releases Lendocity and waives all defenses and claims relating to Independent Sales Organization's classification as an independent contractor. Independent Sales Organization's employees shall not be deemed employees of Lendocity and are not eligible to participate in any Lendocity employee benefit plans or programs. Independent Sales Organization shall be responsible for paying all costs, fees, and penalties related to worker classification, locating prospective Merchants, and submitting prospective Merchants to Lendocity for consideration. Independent Sales Organization shall not be the only Independent Sales Organization used by Lendocity in connection with seeking Merchants for its Program.

SECTION 7: NOTICES

7.1 All notices or communications required by this Agreement, or by law to be given or served upon either Party, shall be in writing and shall be deemed duly served when personally delivered to a Party or to an officer of such Party.

7.2 In lieu of personal service, notices or communications may be sent and delivered either by regular U.S. mail, email, or through facsimile transmissions to the Parties' contact information provided below.

7.3 In the event that either Party changes their address, they shall notify the other Party no less than 30 days after a change of address has occurred.

SECTION 8: TERM. TERMINATION. DISPUTES & REMEDIES

8.1 This Agreement shall have an initial term of 12 months and shall automatically renew for successive 12-month periods unless terminated by either Party upon 30 days written notice.

8.2 This Agreement may be terminated immediately by Lendocity upon the occurrence of an Event of Default. An Event of Default under this Agreement includes, but is not limited to, the following occurrences:

i. A breach by the Independent Sales Organization of any of its obligations hereunder.

ii. Independent Sales Organization causes a detrimental effect to the Program, Lendocity, or its officers, employees, or Merchants, as determined by Lendocity in its reasonable discretion.

iii. It is discovered by Lendocity that the Independent Sales Organization has provided false, misleading, or fraudulent information to Lendocity regarding a Merchant Application, contract, or other documentation provided to Lendocity from the Independent Sales Organization.

iv. Independent Sales Organization fails to return compensation which was paid out prior to a Merchant Default, as expressed in Schedule A: Independent Sales Organization Compensation Schedule (attached hereto), within Five (5) business days of notice by Lendocity.

v. Independent Sales Organization files for bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation, or any similar proceeding, or (a) has such a proceeding instituted against it and such proceeding is not dismissed within 60 days, (b) makes an assignment for the benefit of its creditors or an offer of settlement, extension, or composition to its creditors generally; or (c) a trustee, conservator, receiver, or similar fiduciary is appointed for that party or substantially all of that party’s assets.

8.3 In the event of a default hereunder, the non-defaulting Party shall have such rights and remedies as may be available at law or in equity, including the right to terminate this Agreement and the right to sue for and recover any damages caused by such default, and including also the rights of specific performance and injunctive relief.

8.4 No termination of this Agreement will affect any right of Lendocity under any Merchant Agreement. After any termination of this Agreement, the Independent Sales Organization shall continue to bear total responsibility for all amounts then due or which thereafter may become due to Lendocity under this Agreement.

8.5 This Agreement and all issues and questions concerning the construction, validity, enforcement, and interpretation of this Agreement will be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice of law or conflict of law rules or provisions that would cause the application of the laws of any jurisdiction other than the State of New York. The parties irrevocably submit to the exclusive jurisdiction of any state court in New York County, New York (and any federal court having jurisdiction in New York County, New York), in any action, suit, or proceeding brought under this Agreement and waive, to the fullest extent it may do so, the defense of
forum non conveniens.

8.6 The parties hereby irrevocably waive any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated thereby.

SECTION 9: ADDITIONAL PROVISIONS

9.1 Independent Sales Organization acknowledges that all funds to be received or paid in connection with the Program shall be under the sole control of Lendocity. Independent Sales Organization agrees that if any such fees, payments, or funds are inadvertently sent to Independent Sales Organization , Independent Sales Organization shall be deemed to have received such monies in trust for the benefit of Lendocity and shall immediately remit such monies directly to Lendocity.

9.2 Independent Sales Organization acknowledges and agrees that Lendocity may sell, transfer, encumber or assign this Agreement and/or any rights to any Merchants or Merchant Agreements without Independent Sales Organization 's consent. Independent Sales Organization may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Lendocity. Any such assignment in violation of this provision shall be null and void.

9.3 This Agreement, including the Schedules attached hereto, constitutes the entire Agreement between the Parties with respect to the subject matter herein. All prior to contemporaneous agreements, understanding, representation, warranties and statements, oral or written, relating to the subject matter hereof are superseded. No modification of or amendments to this Agreement shall be binding unless in writing and executed by both Parties.

9.4 If any term, covenant, condition or provision of this Agreement is unlawful,invalid or unenforceable for any reason whatsoever, and such illegality, invalidity or unenforceability does not affect the remaining parts of this Agreement, then such remaining parts shall be valid and enforceable and have full force and effect as if the invalid or unenforceable part had not been included.

9.5 The rights of each of the Parties under this Agreement are cumulative and may be exercised as often as any Party considers appropriate under the terms and conditions specifically set forth. The rights of each of the Parties hereunder shall not be waived or modified unless otherwise expressly stated in writing. Any failure to exercise or any delay in exercising any such rights shall not operate as a waiver or variation of that or any other such right. Any defective or partial exercise of any such rights shall not preclude any other or further exercise of that or any other such right. No act or course of
conduct or negotiation on the part of any Party shall in any way preclude such Party from exercising any such right or constitute a suspension or any variation of any such right.

 9.6 The headings contained in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any provision hereon.

9.7 This Agreement may be executed and delivered in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. A facsimile of this document bearing a party’s signature or a printed copy of the original, signed document scanned in .pdf or .tiff format shall have the same legal force and effect as an original of such signature and shall be treated as an original document for evidentiary purposes.

9.8 If any court holds that a Party has breached this Agreement, then the non-defaulting Party will be entitled to recover expenses incurred in enforcing the provisions of this Agreement, including reasonable attorneys’ fees and costs.

9.9 Neither Lendocity nor Independent Sales Organization will be liable for any failure to perform any obligation (other than payment or reimbursement obligations) hereunder, or from delay in the performance thereof, due to causes beyond its control.