SECTION 1: AFFILIATE RESPONSIBILITIES

1.1 The AFFILIATE 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 AFFILIATE 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 AFFILIATE shall adhere to all Lendocity policies and procedures related to soliciting prospective Merchants. The AFFILIATE 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 AFFILIATE marketing materials featuring Lendocity's name. If Lendocity disapproves of any marketing material, the AFFILIATE must promptly revise it to comply with Lendocity's requirements at the AFFILIATE's expense.

1.4 The AFFILIATE 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 AFFILIATE in an effort to apply for financing through the

1.5 The AFFILIATE 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 AFFILIATE 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 affiliate, or (iii) that have previously contacted or been contacted by Lendocity or another affiliate (collectively "Existing Merchants" If the AFFILIATE submits an application for an Existing Merchant, Lendocity shall notify the AFFILIATE, and the AFFILIATE shall not be entitled to any Compensation under this Agreement for any Existing Merchant applications or information submitted.

1.7 As long as the AFFILIATE is receiving Compensation, the AFFILIATE 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 AFFILIATE 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 AFFILIATE, Lendocity will contact the AFFILIATE 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 AFFILIATE 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 AFFILIATE will be liable to Lendocity for any amount incurred due to the AFFILIATE's or its sales agent's breach of this Agreement, negligence, or fraud, as well as other items outlined in Article VI. The AFFILIATE 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

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 AFFILIATE'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: AFFILIATE COMPENSATION

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

4.2 If AFFILIATE refers a prospective Merchant to Lendocity, but the prospective Merchant does not execute a Merchant Agreement within 90 days of referral, AFFILIATE 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 AFFILIATE in referring a Merchant to Lendocity, Lendocity is not required to pay compensation to such third party, who shall look solely to AFFILIATE for compensation.

4.4 AFFILIATE 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. AFFILIATE must obtain necessary licensing or permission from relevant licensing authorities before soliciting Merchants within jurisdictions requiring licenses. AFFILIATE 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 AFFILIATE, nor any salesperson, principal, or affiliate of AFFILIATE 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, AFFILIATE will not solicit or attempt to obtain any Lendocity employee, affiliate, syndication partner, participant to a participation agreement, or agent to work for or contract directly with AFFILIATE.

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 AFFILIATE or a third party.

 SECTION 6: INDEMNIFICATION AND LIMITATION OF LIABILITY

6.1 AFFILIATE 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. AFFILIATE 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 AFFILIATE 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 AFFILIATE by Lendocity. AFFILIATE shall act solely as an independent contractor and shall not be deemed an agent, partner, or joint venture with Lendocity. AFFILIATE releases Lendocity and waives all defenses and claims relating to AFFILIATE's classification as an independent contractor. AFFILIATE's employees shall not be deemed employees of Lendocity and are not eligible to participate in any Lendocity employee benefit plans or programs. AFFILIATE 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. AFFILIATE shall not be the only affiliate 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

i. A breach by AFFILIATE of any of its obligations hereunder.

ii. AFFILIATE 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 AFFILIATE has provided false, misleading, or fraudulent information to Lendocity regarding a Merchant Application, contract, or other documentation provided to Lendocity from AFFILIATE.

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

V. AFFILIATE 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, AFFILIATE 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 AFFILIATE acknowledges that all funds to be received or paid in connection with the Program shall be under the sole control of Lendocity. AFFILIATE agrees that if any such fees, payments, or funds are inadvertently sent to AFFILIATE, AFFILIATE 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 AFFILIATE acknowledges and agrees that Lendocity may sell, transfer, encumber or assign this Agreement and/or any rights to any Merchants or Merchant Agreements without AFFILIATE's consent. AFFILIATE 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 AFFILIATE 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.

SCHEDULE A

AFFILIATE COMPENSATION SCHEDULE

Definitions: 

1. Factor Rate: A variable rate as defined in Section (iv) below.
2. New Merchant: A party to a Merchant Agreement that has not previously executed a Merchant Agreement or other contract with Lendocity or its affiliates.
3. Purchased Amount: The amount defined as the "Purchased Amount" in the applicable Merchant Agreement between the applicable Merchant and Lendocity and which is the amount the Merchant is obligated to pay Lendocity.
4. Purchase Price: The amount defined as the "Purchase Price" in the applicable Merchant Agreement between the Merchant and Lendocity and which is the amount of all of such Merchant's future accounts, contract rights and other obligations arising from or relating to the payment of monies from Merchant's customers' and/or other third party payors including all payments made by cash, check, electronic transfer or other form of monetary payment in the ordinary course of the merchant's business, for the payment of Merchant's sale of goods or services, which are purchased by Lendocity under its Merchant Agreement.
5. Repeat Merchants: A party to a Merchant Agreement that has previously executed a Merchant Agreement or other contract with Lendocity or its affiliates.

Compensation:

A. New Merchant Payments: Compensation shall be paid to AFFILIATE as follows for New Merchants: Up to twelve percent (12%) of the total amount of the Purchase Price of the factor up sell for any New Merchant, based off the buy rate schedule attached hereto as Schedule A. This amount shall be paid to AFFILIATE after 3 successful cleared ACH drafts. ISO partners who close 5 or more deals on a monthly basis will be paid on their commission on the same day.

B. Factor Rate: All Compensation owed to AFFILIATE pursuant to Article IV above is based upon the buy rate schedule attached hereto as Schedule A. The specific buy rate program shall be specified at the time of approval. Lendocity shall have the right, in its sole discretion, to change the Factor Rate at any time. In the event Lendocity decreases the Factor Rate for any Merchant to an amount below the Factor Rate listed above, Lendocity shall have the right, at any time, to decrease the amount of Compensation owed to AFFILIATE on a pro-rata basis.

C. Merchant Default Provision: In the event of a Merchant Default (within 45 business days of funding) and as defined within the Merchant Agreement, AFFILIATE shall refund to Lendocity the full Compensation amount. This includes any compensation and/or commission that the AFFILIATE may have made to sub-agents or independent brokers within or outside of AFFILIATE's organization. If the Compensation amount is not returned within five (5) days of Lendocity request, Lendocity has the right to withhold future compensation or ACH the full amount directly from the account to which Compensation was originally paid.

General Provisions:

1. Compensation payments to AFFILIATE are earned and payable only when Lendocity irrevocably receives payments from respective Merchants. If a Merchant disputes or refuses a payment, AFFILIATE must return the Compensation to Lendocity within five (5) business days of notice. Failure to do so constitutes an Event of Default. If Lendocity reverses the chargeback or debit and collects the owed amount, the Compensation will be repaid to AFFILIATE.
2. AFFILIATE grants Lendocity the right to recoup and/or offset against any Compensation owed to AFFILIATE under this Agreement any amount that AFFILIATE owes to Lendocity.
3. No Compensation payments will be made to AFFILIATE until the total amount Lendocity owes AFFILIATE reaches at least $100.00, notwithstanding any contrary provisions set forth in this Agreement.