Qualpay Partner Referral Agreement

This Partner Referral Agreement (the “Agreement”) is made and entered into by and between Qualpay, Inc., a Delaware corporation, having its principal place of business at 4 West 4th Avenue, FL 6, San Mateo, CA 94402 (“Qualpay”), and you or your company (“You”) (a “Party”, or together “Parties”). Capitalized words and phrases not defined within have the meanings found in Appendix A.

The Parties agree as follows:

1. Partner Program Description

The Parties desire to cooperate and assist each other in a referral program in accordance with the terms of this Agreement. By executing this Agreement, Qualpay grants you a nonexclusive, nontransferable right to market and promote Qualpay’s products, solicit Merchants interested in Qualpay’s product and services, and refer Merchants to Qualpay for enrollment in those services. Qualpay will pay you a Referral Fee for all qualified Referred Merchants. The Parties will work together and arrange for mutually acceptable meetings or conference calls to review and discuss marketing issues to help develop and implement an on-going improvement program for the referral process and to develop web and physical marketing collateral.

2. Company Responsibilities

• You will use commercially reasonable efforts to refer Merchants to Qualpay on a non-exclusive basis in accordance with Qualpay’s procedures and instructions. You will use your own staff for these activities; you will not use agents or subcontractors unless they (i) are pre-approved in writing by Qualpay and (ii) enter into a written agreement with Qualpay in a form approved by Qualpay in its sole discretion.
• You will assist Merchants in contacting Qualpay for an application for Merchant Processing Services. This may include directing the Merchant to the Qualpay online application webpage where the Merchant may complete the application, directing the Merchant to an online “splash page” where the Merchant may fill out a call back form, providing the Merchant with Qualpay’s toll free phone number to reach the Qualpay sales group, or any other reasonable method of contact.
• You will make no representations or warranties regarding Qualpay or Qualpay’s Merchant Processing Services other than as specifically provided in this Agreement.
• You will comply with all federal, state and local laws, rules and regulations that are applicable to their activities under this Agreement. You will also comply with the Card Brand Rules.
• You agree and acknowledge that Qualpay reserves the right to decline, accept, or terminate Merchants based upon its own acceptance criteria and in its sole discretion.  Qualpay reserves the right to modify Merchant selection criteria at any time without notice.
• You agree to notify Qualpay immediately if it determines that fraudulent or otherwise improper Transaction activity is being conducted by a Referred Merchant.
• You will not surcharge, bill, or collect any fees from Referred Merchants for their enrollment in or use of Qualpay’s services.
• You will market all Qualpay Merchant Processing Services under Qualpay’s brand names. You will have all marketing materials related to Merchant Processing Services approved in advance by Qualpay. If you desire to market Qualpay’s Merchant Processing Services under your own company name or brand, you may contact Qualpay to assist in your registration as an independent sales organization with the sponsor bank and Payment Brands.

3. Qualpay Responsibilities

• Qualpay will provide an on-line Merchant account application, online “splash page” and toll-free phone number, account sign-up procedures and account qualifications, payment gateway, equipment rental and sales information, as necessary, electronic service set-up form, and maintain APIs as necessary.
• Qualpay will establish pricing for each Referred Merchant according to Qualpay’s pricing guidelines, which Qualpay may amend at any time.
• Qualpay will provide all Merchant Processing Services to Referred Merchants including providing terminals as needed, all training on Qualpay products, technical support for Qualpay services, and customer support functions related to Merchant Processing Services.
• Qualpay will provide all billing to Referred Merchants per the terms of the Merchant Agreement.

4. Referral Fees

• You will receive the Processing Revenue Split as outlined in Pricing on the partner application for each Referred Merchant. Merchants must meet the definition of a Referred Merchant as set out in Appendix A: Definitions, in order for you to receive a Processing Revenue Split for that Merchant.
• All payments due under this Agreement for any month will be due and payable by the 20th day of the next succeeding month, beginning the month after the Effective Date or as otherwise specified in Appendix B.  If any such payment date falls on a day that is not a business day, the payment will be made on the next succeeding business day.  All payments are final thirty (30) days after payment.
• Payment will be made to you by ACH credit to the bank account you designate in the sign-up process. You will promptly notify Qualpay of any changes to your bank account or other relevant information.
• Qualpay may terminate the accrual and payment of Referral Fees if you breach this Agreement.
• In any event, all Referral Fees payable to you under this Agreement will cease upon termination of the non-solicitation period set forth in Section 7 of this Agreement.
• Unless otherwise specified in this Agreement, each Party shall be solely responsible for their own costs of performance, including all applicable taxes, and will not be entitled to reimbursement from the other Party for such costs.

5. Term And Termination

• The Term of this Agreement will commence on the Effective Date and will continue until either Party provides the other Party with at least thirty (30) days written notice of its intent to terminate this agreement.
• Qualpay may terminate this Agreement immediately upon written notice in the event the you: (i) fail to establish reasonable procedures for protecting Qualpay's Confidential Information or has intentionally disclosed Qualpay's Confidential Information, without permission; (ii) make a general assignment for the benefit of creditors; (iii) apply for the appointment of a trustee, liquidator or receiver for your business or property, or one is assigned involuntarily; (iv) are subject to a proceeding for bankruptcy, receivership, insolvency, dissolution or liquidation; (v) are adjudicated insolvent or bankrupt; (vi) breach any Rule or applicable law; (vii) intentionally misrepresents the nature of a Merchant’s business; (viii) adopt general business practices that endanger the financial soundness of Qualpay's merchant processing business as determined by Qualpay in its sole discretion; or (ix) are notified by a Payment Brand that your activities are those of an Independent Sales Organization or Member Service Provider (as defined by Card Brand Rules) and you are not appropriately registered with the Payment Brands.
• Termination by either Party will not relieve the other Party from any obligation accrued through the date of termination.  In addition, the terms and conditions set forth in this Agreement which by their nature would continue beyond termination of this Agreement, including by way of illustration only and not limitation, the provisions with respect to: Confidential Information, limitation of liability, indemnification and proprietary rights will survive the termination of this Agreement.
• Upon termination of this Agreement at any time, for any reason, each Party will immediately return to the other Party (or certify as destroyed) all Confidential Information of the other Party (including all copies thereof) then in its possession or custody or control.

6. Non-Solicitation

During the term of this Agreement, and for a period of five (5) years after termination of this Agreement, you agree not to engage in any type of solicitation, sales, marketing or other targeted activity to Qualpay Referred Merchants for the purposes of offering, selling, or promoting Merchant Processing or similar services to any provider other than Qualpay.

7. Limitation of Liability

Except as Otherwise Provided in This Agreement, neither Party Will Be Liable or Obligated to the Other Under Any Section of This Agreement or Under Contract, Negligence, Strict Liability or Other Legal or Equitable Theory for Any Incidental or Consequential Damages, Lost Profits, or Lost Data.  Except for a Party’s Indemnification Obligations Contained in This Agreement, in No Event Will either Party’s Liability Exceed the Amounts Paid Under This Agreement During the Most Recent Six-Month Period.

8. Indemnification

Each Party (the "Indemnitor") will defend or settle at its expense any claim or suit, including without limitation any proceeding, investigation or claim (an “Action”) brought by a third-Party against the other Party, each of its affiliates, directors, officers, agents, employees and sub-licensees (the "Indemnitee") to the fullest extent permitted by law arising out of or in connection with a third-Party claim: (a) that the information, content or other materials or services provided or made available by the Indemnitor or the use thereof as specifically authorized by the Indemnitor, infringe any patent, copyright or trademark rights of any third-Party, or are a misappropriation of any third-Party’s trade secret, or contain any libelous, defamatory, or disparaging materials; or (b) related to any breach by Indemnitor of its obligations, representations and warranties under this Agreement. The Indemnitor will indemnify and hold harmless the Indemnitee from and against any and all damages, costs, liabilities and attorneys’ fees, incurred in defending and/or resolving such Action; provided that (a) the Indemnitor is promptly notified in writing of such Action, (b) the Indemnitor will have the sole control of the defense and/or settlement thereof, (c) the Indemnitee furnishes to the Indemnitor, within a reasonable time, information available to the Indemnitee for such defense, and (d) the Indemnitee cooperates in any defense and/or settlement thereof as long as the Indemnitor pays all of the Indemnitee’s reasonable out of pocket expenses and attorneys’ fees.

9. License

• The Parties grant each other a non-exclusive right to use the other Party’s API and any related documentation to enable interoperability between  Qualpay’s Platform and other products and services and your company technology.
• Each Party agrees that it will not use or attempt to use the other Party’s API (i) in violation or contravention of any applicable law or regulation or (ii) use or attempt to use the API documentation for any other purpose other than that described in Section 9.1.

10. Authorized Users

• You are responsible for (i) ensuring that only authorized users may access Qualpay’s Platform, systems or portals; (ii) keeping all logins, user names, and passwords confidential; (iii) promptly notifying Qualpay of any unauthorized access of such logins, user names, or passwords; and (iv) all actions taken by anyone using such access, logins, user names, or passwords, even if you did not authorize those actions.
• You are responsible for the acts and omissions of your employees, consultants, contractors, agents, officers, and directors, including any unauthorized access to or use of the Services.

11. Proprietary Rights

• Qualpay and its respective licensors and third-Party information and content providers retains all rights, title and interest in and to all of the information, content, data, designs, materials and all copyrights, patent rights, trademark rights and other proprietary rights thereto provided or licensed by Qualpay as described in this Agreement or used in the provision of Merchant Processing Services.
• Except as expressly provided herein, each Party or their respective licensors and third-Party information and content providers retain all rights, title and interest in and to all of the information, content, data, designs, materials and all copyrights, patent rights, trademark rights and other proprietary rights thereto provided by it pursuant to this Agreement. Except as expressly provided herein, no other right or license is granted under this Agreement. All rights not expressly granted hereunder by a Party are expressly reserved to such Party and its licensors and information and content providers.

12. Confidential Information

Each Party agrees to keep confidential and not disclose or use except in performance of its obligations under this Agreement, the other Party’s Confidential Information.  Neither Party will disclose the terms of this Agreement to any third-Party without the prior written consent of the other Party.  Each Party will use reasonable precautions to protect the other’s Confidential Information and employ at least those precautions that such Party employs to protect its own confidential or proprietary information.  Confidential Information will not include information the receiving Party can document (a) is in or (through no improper action or inaction by the receiving Party or any affiliate, agent or employee) enters the public domain (and is readily available without substantial effort), or (b) was rightfully in its possession or known by it prior to receipt from the disclosing Party, or (c) was rightfully disclosed to it by another person without restriction, or (d) was independently developed by it by persons without access to such information and without use of any Confidential Information of the disclosing Party.  Each Party, with prior written notice to the disclosing Party, may disclose such Confidential Information to the minimum extent possible that is required to be disclosed pursuant to a court order or subpoena, provided that reasonable measures are taken to guard against further disclosure, including without limitation, seeking appropriate confidential treatment or a protective order, or assisting the other Party to do so.

13. Arbitration

Any claim between the Parties, including but not limited to those arising out of or relating to this Agreement and any claim based on or arising from an alleged tort, shall be determined by, but not administered by, arbitration in San Mateo County, California under the American Arbitration Association (AAA) and the AAA Commercial Rules with Expedited Procedures in effect on the date hereof, as modified by this agreement.

14. General Provisions

• Publicity. Any press releases or publicity relating to this Agreement will be approved by both Parties and no publicity will be released without such prior written approval, unless otherwise required by law.
• Headings. Section headings shall not be used to construe or interpret this Agreement.
• Waiver. No delay, failure or waiver of either Party’s exercise or partial exercise of any right or remedy under this Agreement shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. Wherever this Agreement requires any Party’s approval, consent or satisfaction, the response shall not be unreasonably or arbitrarily withheld or delayed.
• Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired thereby.
• Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The Parties further agree that in the event of any dispute regarding this Agreement, the federal courts and the courts of the State of California located in San Mateo County, California shall have and be vested with personal jurisdiction over the Parties to this Agreement.
• Attorney’s Fees. In the event of a dispute between or among the Parties arising under or relating to this Agreement that results in arbitration or litigation, the prevailing Party, as determined by the court or arbitrators, shall be entitled to its reasonable attorney’s fees (including allocated costs for in-house legal services), costs and necessary disbursements incurred in connection with such action or proceeding.
• Counterparts; Electronic Signature. This Agreement may be executed by the Parties in one or more counterparts, and each of which when so executed shall be an original but all such counterparts shall constitute one and the same instrument. This document may be executed electronically, and the Parties agree to the use of electronic signatures. The Parties agree that transmitted copies of this Agreement—copies which are reproduced and transmitted via photocopy, facsimile, e-mail, or other means—will be equivalent to original documents.
• Amendments in Writing. This Agreement may only be amended or modified by a subsequent written agreement by and between the Parties hereto.
• Relationship of the Parties. The Parties understand and agree that each Party is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Neither Party nor its agents or employees are the representatives of the other Party for any purpose and neither Party has the power or authority as agent, employee or any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.
• Assignment. Neither this Agreement or any rights, licenses or obligations hereunder, may be assigned by either Party without the prior written consent of the non-assigning Party, provided such approval will not be unreasonably withheld or denied. Notwithstanding the foregoing, either Party may assign this Agreement to any acquirer of all or of substantially all of such Party’s equity securities, assets or business related to the subject matter of this Agreement without the prior approval of the other Party. Any attempted assignment in violation of this Agreement will be void and without effect. Subject to the foregoing, this Agreement will benefit and bind the Parties’ successors and assigns.
• Force Majeure. A Party will not be liable for nonperformance or delay in performance (other than of obligations regarding payment of money or confidentiality) caused by any event beyond the reasonable control of such Party including, but not limited to, wars, hostilities, acts of terrorism, revolutions, riots, civil commotion, national emergency, strikes, lockouts, epidemics, fire, flood, earthquake, force of nature, explosion, embargo, or any other Act of God, or any law, proclamation, regulation, ordinance, or other act or order of any court, government or governmental agency.
• Notice. Notices under this Agreement should be given electronically, sent to the electronic mail address provided by you in the Qualpay Partner Program Application. Notices to Qualpay shall be sent to legal@qualpay.com and deemed given upon confirmation.
• Trademarks.  You and Qualpay acknowledge and agree that this Agreement does not operate to assign, transfer, or convey to you any license, privilege, or right of any kind or nature or to use for any purpose any registered names, trademark, proprietary names, network names, or marks owned, licensed, or used the other Party in any advertising, signage, or promotional materials without the other Party’s prior written approval except as follows: Each Party grants the other Party the right to use, reproduce, publish, perform, and display the other Party’s trademarks in promotional and advertising materials and electronic and printed advertising, publicity, press releases, newsletters, and mailings about or related to Qualpay’s services. All uses of trademarks shall inure to the benefit of the Party owning such trademark.
• Non-Solicitation. Neither Party will hire employees of the other Party for employment during the term of this Agreement without the other Party’s consent, given in writing.
• Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior discussions, documents, agreements and prior course of dealing, and will not be effective until signed by both Parties.

By clicking to agree to this Agreement, you acknowledge and agree that it has reviewed and understands the Agreement and agrees to be legally bound by its terms and conditions.

Appendix A-Definitions

“American Express” means American Express Travel Related Services you or its successors or assigns.

“API” means application programming interface that Qualpay provides to you or you provides to Qualpay to enable interoperability between the two Parties.

“Card Brand Rules” means all bylaws, rules, programs, and regulations, as they exist from time to time, of the Payment Brands.

‍“Chargeback” means a reversal of a Transaction previously presented to Qualpay or its sponsoring bank for settlement by such Payment Brand directly to a Merchant. 

“Confidential Information” means all proprietary, secret or non-public information, software, or data relating to either Party and their operations, technology, employees, products or services, clients, customers or potential customers (including those Merchants referred by you under the terms of this Agreement), and includes the Referred Merchant pricing and marketing plans related to the Merchant Processing Services, as well as the terms of this Agreement.

“Customer” means the person or entity to whom a Payment Instrument is issued or who is otherwise authorized to use a Payment Instrument.

“Discover” means Discover Financial Services LLC or its successors or assigns.

‍“Effective Date” means the date this Agreement is signed by you.

“MasterCard” means MasterCard Worldwide, Incorporated or its successors or assigns.

“Merchant” means a person or entity that accepts Payment Instruments as payment for goods, services or otherwise.

“Merchant Agreement” will mean an agreement by and among Qualpay and/or Qualpay’s sponsoring bank and a Referred Merchant for providing Merchant Processing Services.

“Merchant Processing Services” means (i) all services necessary to authorize, data capture, process, settle and reconcile transactions effected by Merchants with Customers using Payment Instruments, (ii) all services necessary to authorize, data capture and process conveyed transactions (and when permitted by the applicable Payment Brand, settle and reconcile) transactions effected by Merchants with Customers using Payment Instruments, including American Express, Discover, JCB, and Diners Club/Carte Blanche, (iii) check guarantee and electronic check acceptance services, and (iv) other related products and services, including point of sale terminal equipment and other electronic payments at the point of sale.  Unless the context requires otherwise, such term includes related merchant account setup, Merchant customer service, Chargeback and retrieval processing, point of sale hardware deployment and service, interchange settlement and risk management (including new Merchant application approval).

“Open Account” means any Referred Merchant that has not been canceled or terminated.

“Payment Brand” means any payment method provider whose payment method is accepted by Qualpay for processing, including, without limitation, Visa, MasterCard, Discover, American Express and other credit and debit card providers, debit network providers, gift card, and other stored value and loyalty program providers.  Payment Brand also includes the Payment Card Industry Security Standards Council.

“Payment Instrument” means an account, or evidence of an account, authorized and established between a Customer and a Payment Brand, or representatives or members of a Payment Brand that Merchant accepts from Customers as payment for a good or service.  Payment Instruments include, but are not limited to, credit and debit cards, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates, and credit accounts.

“Platform” or “Qualpay’s Platform” means Qualpay’s internet-accessible browser-based software platform and supporting systems. 

“Pricing” means the table outlining the Processing Revenue Split and pricing cost elements attached to this Agreement and partner application. 

“Processing Revenue” means all revenue on Open Accounts collected by Qualpay, minus (i) revenue lost on Open Accounts due to Chargebacks, returns, credits, adjustments and other negative amounts assessed against Open Accounts, (ii) interchange fees, fines, dues, penalties and assessments attributed to an Open Account, (iii) equipment-related charges, (iv) all costs paid from revenue on Open Accounts incurred from agents, vendors, value added resellers or other third-parties utilized by a Referred Merchant, and (v) all other fees and expenses incurred by Qualpay as a result of providing Merchant Processing Services.

“Processing Revenue Split” means the percentage of the Processing Revenue that you receive under this Agreement. 

“Referral Fee” means the dollar amount of Processing Revenue that you receive after the Processing Revenue Split. 

“Referred Merchant” means a Merchant referred to Qualpay by you subject to the following conditions: (1) the Merchant was not an existing customer of Qualpay as of the date the Merchant was referred to Qualpay; (2) the Merchant had not been previously contacted by Qualpay for Merchant Processing Services; (3) the Merchant has executed a Merchant Agreement.

“Transaction” means a payment for goods or services using a Payment Instrument conducted between a Customer and Merchant in which consideration is exchanged between the Customer and Merchant.

“Visa” means Visa U.S.A. Inc. or Visa International or either of their successors or assigns.