THE FOLLOWING IS THE AGENT AGREEMENT ALL NEW AGENTS SIGN WHEN THEY BEGIN WORKING WITH US. LAST REVISION APRIL 4TH 2017
DEFINITIONS AND INTERPRETATION.
1.1 Defined Terms. Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings.
(a) “Affiliate” means, with respect to a Party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly controls, is controlled with or by, or is under common control with such Party.
(b) “Applicable Law” means all federal and state laws, including regulations, applicable to the activities and obligations contemplated under this Agreement, including without limitation the federal Truth-in-Lending Act, Equal Credit Opportunity Act, Fair Credit Reporting Act, Fair Debt Collection Practices Act, the Gramm-Leach-Bliley Act, Dodd Frank Act, CAN- SPAM Act and all applicable state licensing, consumer credit and privacy laws, as the same may be amended and in effect from time to time during the Term.
(c) “Business Day” means any day (other than a Saturday, Sunday or legal holiday) on which federally-insured financial institutions in New York, New York are permitted to be open to conduct substantially all of their business.
(d) “Confidential Information” means any data or information, oral or written, whether or not marked “confidential,” that relates to either Party’s (or, if either Party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, inventions, processes, plans, financial information and budgetary or confidential or proprietary business information, revenue, forecasts, projections, the terms of this Agreement and any other information which from its nature or the circumstances in which it is received should reasonably be recognized to be confidential. Notwithstanding the foregoing, Confidential Information shall not be deemed to include information if: (i) it was already known to the receiving Party prior to delivery to such Party, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving Party; (iii) it has been rightfully received by the receiving Party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or, (v) it has been independently developed by a Party without access to or use of the Confidential Information of the other Party.
(e) “Intellectual Property” means all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask- work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or any other state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.
(f) “ABC Details” means data regarding ABC’s use of the Service, including general details regarding amount of funding provided, interest rate, time between application for funding and fulfillment, and, as applicable, timing of repayment of funding.
(g) “ABC Services” means helping business owners with the obtaining ofunsecured credit cards, loans, and the accessing of their retirement funds for business use.
(h) “Potential Applicant” means a business or business owner to whom AGENT provides the AGENT Service.
(i) “Service” means the services provided by AGENT pursuant to thisAgreement which are related to the pre-screening of Potential Applicants according to criteriamutually agreed upon by AGENT and ABC, the referral of such Potential Applicants to ABC,and such other services provided by AGENT pursuant to this Agreement as may be set forth inany appendix or schedule attached hereto and incorporated herein from time to time.
1.2 Interpretation. References to Sections and Appendices are to be construed as references to the Sections of, and Appendices to, this Agreement, unless otherwise indicated. The singular includes the plural, and the plural includes the singular. All references to “hereof,” “herein,” “hereunder” and other similar compounds of the word “here” shall mean and refer to this Agreement as a whole rather than any particular part of the same. The terms “include” and “including” are not limiting. Unless designated as Business Days, all references to “days” shall mean calendar days.
2.CERTAIN RIGHTS AND OBLIGATIONS OF AGENT.
2.1 Referrals. If a Potential Applicant’s Application Information meets certain criteria, AGENT shall identify to the Potential Applicant: (a) the ABC as a potential source of funding for which the Potential Applicant is provisionally pre-qualified, and (b) the ABC Details. In the event that a Potential Applicant expresses interest in connecting with ABC, AGENT shall transfer the Potential Applicant to ABC via an online handoff (each such handoff, a “Referral”). AGENT is not obligated to identify ABC as a potential source of funding to any minimum number of Potential Applicants, nor is AGENT obligated to identify any Potential Applicant to ABC except as expressly provided herein.
2.2 Successful Referrals. For every Referral that results in credit or capital made available to any Potential Applicant (each, a “Successful Referral ”), ABC agrees to notify AGENT regarding the fact of the Successful Referral. The Parties acknowledge and agree that AGENT has no role in any decision by ABC to extend or refuse to extend funding to any Potential Applicant. At no time shall AGENT represent to the Potential Applicant that a provisional pre-qualification guarantees that ABC will provide funding to the Potential Applicant or that such funding will be subject to the Funding Terms as quoted. AGENT acknowledges that all aspects of the ABC Services are subject to the management and approval of ABC and AGENT shall make no representations to the contrary.
2.3 Affiliates. The rights, duties and/or obligations of AGENT under this Agreement may be exercised and/or performed by AGENT and/or any of AGENT’s Affiliates, or any of their subcontractors and/or agents.
3. CERTAIN RIGHTS AND OBLIGATIONS OF ABC.
3.1 Referral Status. ABC shall provide AGENT with weekly reporting or access to information regarding the status of all Referrals. Information conveyed must include (a) the identity of the Potential Applicant, and (b) at which stage in the ABC’s application and/or underwriting process the Referral was at as of the close of the previous Business Day.
3.2 Successful Referral Information. On a weekly basis, ABC shall provide AGENT an itemized list of all Successful Referrals, including (a) the identity of any Potential Applicants to whom credit or funding has been provided, (b) the total amount of credit or funding provided to each Potential Applicant, (c) ABC’s fees generated from the Successful Referral, and (d) as applicable, the interest rate associated with such credit or funding.
3.3 ABC Origination Fees. As consideration for AGENT’s obligations under this Agreement, ABC shall pay to AGENT an amount equal to TEN Percent (10.0%) if a name, phone number, and email address is submitted and TWENTY percent (20.0%) if a credit report and/or bank statements or other financials are submitted. This percentage is based off of any NET fees generated by ABC following a Successful Referral (“ ABC Origination Fee ”).
3.4 Timing of Fee Payments. With respect to any ABC Origination Fee, ABC shall pay to AGENT the ABC Origination Fee no later than 7 days following the calendar month during which the funding associated with the ABC Origination Fee was generated. ABC’s obligation to pay ABC Origination Fees as provided in this Section shall survive for ninety (90) days after the effective date of termination of this Agreement.
4. CONFIDENTIAL INFORMATION.
4.1 Confidential Information.
(a) Each Party acknowledges and agrees that, from time to time, it may receive Confidential Information from the other Party. The Party that receives Confidential Information (the “Receiving Party”) hereby agrees (i) to hold the other Party’s (the “Disclosing Party”) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, (iv) not to remove or export from the United States or re-export any such Confidential Information or any direct product thereof, except in compliance with, and with all licenses and approvals required under, applicable U.S. and foreign export laws and regulations, including, without limitation, those of the U.S. Department of Commerce, (v) not to copy or reverse engineer any such Confidential Information, and (vi) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate “need to know” and shall be bound in writing to comply with the Receiving Party’s confidentiality obligations, whether generally or specific to this Agreement.
(b) Except as authorized by a Potential Applicant, in providing any Referral, AGENT shall not relay to ABC any “non-public personal information” or “personally identifiable financial information” as defined in federal regulations implementing the Gramm- Leach-Bliley Act, as amended from time to time.
(c) Notwithstanding any provision in this Agreement to the contrary, each Party may disclose Confidential Information of the other Party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information shall be given reasonable notice of the pendency of such an order or requirement and the opportunity to contest it.
5. TERM AND TERMINATION.
5.1 This Agreement shall commence on the Effective Date. The initial term (“Initial Term”) of this Agreement shall be one (1) year, beginning from the Effective Date. Thereafter, this Agreement will renew automatically for additional terms of six (6) months (each, a “Renewal Term”) (the Initial Term, collectively with all Renewal Terms, the “Term”), unless either Party provides written notice to the other Party, at least sixty (60) days prior to the commencement of any Renewal Term, that the Agreement shall not so renew.
5.2 The Agreement may be terminated by either Party at any time in the event of a material breach by the other Party that remains uncured after thirty (30) days written notice thereof. Notwithstanding anything contained herein to the contrary, AGENT may terminate this Agreement at any time for any reason or for no reason upon sixty (60) days prior written notice to ABC.
5.3 The Agreement may be terminated by either Party effective immediately upon notice to the other Party in the event that: (i) the other Party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (ii) a receiver, trustee, or similar officer is appointed for the business or property of such other Party; (iii) any involuntary petition or proceeding, under bankruptcy or insolvency laws, is instituted against such other Party and not stayed, enjoined, or discharged within sixty (60) days; (iv) the other Party ceases business operations or adopts a resolution for discontinuance of its business or for dissolution; (v) any representation, warranty statement or certificate furnished to it by any other Party in connection with or arising out of the Agreement is materially adverse to the terminating Party and intentionally untrue as of the date made or delivered; (vi) there is any change to or enactment of any Applicable Law, or published change in the interpretation thereof by any Regulatory Authority, which would have a material adverse effect upon the subject matter hereof, such Party’s ability to perform its obligations hereunder, or such Party’s expected risks or benefits under this Agreement, provided that the Parties, after good faith discussions, cannot find a mutually agreeable solution within a reasonable amount of time , which time shall not exceed sixty (60) days unless extended by mutual agreement of the Parties; (vii) there is a violation of Applicable Law relating to the performance of this Agreement rendering either of the Parties unable to substantially perform this Agreement, provided that the Parties cannot find a legally workable solution to avoid violating Applicable Law within a reasonable amount of time, which time shall not exceed sixty (60) days unless extended by mutual agreement of the Parties; or (ix) any Regulatory Authority directs either Party to cease or materially limit performance of its obligations under this Agreement.
6. INDEMNIFICATION; LIMITATION OFLIABILITY; RECORDRETENTION.
(a) Each Party (the “Indemnifying Party”) will defend at its expense any legal cause of action brought against the other Party, its officers, directors, employees, and the successors and assigns of the foregoing (the “Indemnified Party”), to the extent that such cause of action is based upon a claim that any services or products of the Indemnifying Party infringe a copyright, patent, trade secret, or other intellectual property rights of a third party under the laws of the United States. The Indemnifying Party will pay those costs and damages incurred by the Indemnified Party which are attributable to any such claim, provided that (i) the Indemnified Party notifies the Indemnifying Party in writing promptly after the Indemnified Party becomes aware of such claim (provided that the failure to so notify shall not affect the Indemnified Party’s rights to indemnification hereunder unless, and then only to the extent that, the Indemnifying Party has been actually prejudiced thereby); and, (ii) the Indemnifying Party has sole control of the settlement, compromise, negotiation, and defense of any such action (provided that the Indemnifying Party may not agree to any settlement that involves injunctive or equitable relief affecting the Indemnified Party or admission of liability by the Indemnified Party without obtaining the Indemnified Party’s prior written consent); and, (iii) the Indemnified Party cooperates, in good faith, in the defense of any such legal action.
(b) Should any of the Indemnifying Party’s products or services become, or in the Indemnifying Party’s opinion is highly likely to become, the subject of a claim of infringement, the Indemnifying Party may, at its option, (i) obtain the right for the Indemnified Party to continue using said products or services; (ii) replace or modify the Indemnifying Party’s products or services with substantially similar products or services so that they are no longer infringing or reduces the likelihood that they will be determined to be infringing; or (iii) if neither of the foregoing options is commercially reasonable, terminate this Agreement.
(c) The Indemnifying Party shall have no liability for any claim of infringement based on (i) products or services of the Indemnifying Party which have been modified by parties other than the Indemnifying Party; (ii) the Indemnified Party’s use of the Indemnifying Party’s products or services in conjunction with the Indemnified Party’s products, services or data where use with such products, services or data gave rise to the infringement claim; (iii) failure of the Indemnified Party to install upgrades or patches provided by the Indemnifying Party where such upgrade or patch would have removed the infringing condition; or, (iv) the Indemnified Party’s use of the Indemnifying Party’s products or services in a manner inconsistent with documentation provided with such products or services; or, (v) the Indemnified Party’s use of the Indemnifying Party’s products or services with software or hardware not authorized by the Indemnifying Party, where use with such other software or hardware gave rise to the infringement claim.
6.2 Limitations of Liability.
(a) EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES (i) SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR SUCH PARTY’S LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; OR (ii) SHALL THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE ABC ORIGINATION FEES PAID OR PAYABLE TO AGENT HEREUNDER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
(b) THE EXCLUSIONS AND LIMITATIONS SET FORTH IN SECTION 8.2a ABOVE DO NOT APPLY TO LIABILITY FOR BODILY INJURY OR DEATH OF A PERSON, OR TO THE EXTENT SUCH LIMITATIONS AND EXCLUSIONS ARE PROHIBITED BY APPLICABLE LAW.
6.3 Waiver. The waiver by either Party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.
6.4 Governing Law; Consent to Jurisdiction. This Agreement will be deemed entered into in Maryland and will be governed by and interpreted in accordance with the laws of the State of Maryland, excluding: (i) that body of law known as conflicts of law, and (ii) the United Nations Convention on Contracts for the International Sale of Goods. The Parties agree that any dispute arising under this Agreement will be resolved in the state or federal courts in New York County, New York, and the Parties hereby expressly consent to jurisdiction therein.
6.5 Third Party Beneficiaries. Except as limited by Section 10.8, this Agreement and the rights and obligations hereunder shall bind, and inure to the benefit of the Parties and their successors and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer upon any person, other than the Parties and their successors and permitted assigns, any of the rights hereunder.
6.6 Entire Agreement. This Agreement and each of its exhibits or appendices constitutes and contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. Each Party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.
6.7 Survival. All provisions of this Agreement that by their nature extend beyond the expiration or termination of this Agreement, including, without limitation Section 3.4 and definitions herein as applicable to interpretation of the foregoing shall survive the termination of this Agreement.
6.8 Severability. If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the Parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement.
6.9 Relationship Of Parties. The Parties shall perform all of their duties under this Agreement as independent contractors, and nothing in this Agreement shall be construed to give either Party the power to direct or control the activities of the other Party, or to constitute the Parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. The Parties understand and agree that, except as specifically provided in this Agreement, neither Party grants the other Party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other Party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other Party, or to transfer, release, or waive any right, title or interest of such other Party.
6.10 Headings. The headings, captions, headers, footers and version numbers contained in this Agreement are intended for convenience or reference and shall not affect the meaning or interpretation of this Agreement.
6.11 Counterparts. This Agreement may be executed and then delivered via facsimile transmission, via the sending of PDF or other copies thereof via email and in one or more counterparts, each of which shall be an original but all of which taken together shall constitute one and the same Agreement.
6.12 Notices. Unless otherwise expressly set forth in this Agreement, any legal notice required under this Agreement shall be given in writing at the address set forth below, as may be amended in writing from time to time, and shall be deemed to have been delivered and given for all purposes: (i) on the delivery date, if delivered by hand courier to the Party to whom such notice is directed; (ii) two (2) Business Days after deposit with a commercial overnight carrier; (iii) five (5) Business Days when mailed by United States mail; and, (iv) upon completion of transmission, if sent via facsimile with a confirmation of successful transmission.
Atlantic Business Consulting & Capital, LLC DBA Finance Factory 600 Fairmount Ave Suite 206 Towson Md. 21286