This referral platform agreement (the “Agreement”) is between the entity accepting this Agreement (“Platform”) and Benchmark Merchant Solutions, LLC dba SplashPayments (“Company”).
Platform is in the business of providing services (“Platform Services”) to merchants (each a “Platform Merchant”). Company, together with Bank, is in the business of providing payment processing services (“Merchant Services”) to merchants pursuant to agreements with each of them (each a “SplashPayments Terms of Service” and each such merchant a “Merchant”). Platform wishes to refer Platform Merchants to Company hereunder so that they might become Merchants and the parties hereto wish to integrate their respective platforms in order to assist in their respective clients accessing data and information from the others’ platform. At the end of this Agreement there is a glossary where the capitalized terms in this Agreement appear.
The Merchant Services are a cloud-based payment processing system by which Company, Bank and Processor serve as an agent for Merchants to process payments on their behalf. Company may also, where requested by a Merchant, perform other services on behalf of Merchant as per the terms of the SplashPayments Terms of Service. Company makes no representation as to whether Bank or Processor will make Merchant Services available for Platform or its Merchants. With respect to Merchant Services, each of Bank, Processor and Company have their own distinct underwriting criteria and process which may result in the denial by any of them of the availability of Merchant Services to Platform or Merchants.
In the event that a Platform Merchant or other contact of the Platform may be interested in procuring Merchant Services, Platform will provide the contact information of that Platform Merchant or contact to Company. Each merchant that is referred to Company hereunder and that enters into a SplashPayments Terms of Service as a result of such referral shall be referred to herein as a “Referred Merchant”.
Subject to prior consent from each Referred Merchant, for the term of this Agreement and the applicable SplashPayments Terms of Service, Company shall grant Platform access to its Integration such that Platform will be able to deliver instructions and receive information to and from Company for and on behalf of the Referred Merchant that has granted such access. Company makes no representation as to the compatibility of the Merchant Services with the Platform. Any and all instructions received from or information sent to Platform, in respect of such a Referred Merchant, shall be deemed to have been received from or delivered to the Referred Merchant under the SplashPayments Terms of Service. For greater certainty, Platform shall not use the Account or Merchant Services for its own sales or Transactions; it shall, instead, act on behalf of the Referred Merchant in providing certain instructions to Company under the SplashPayments Terms of Service and also receive reports concerning the Merchant Services. Platform shall not grant a fourth party access to the Account. Platform represents that it has obtained consent from the Referred Merchant to perform under this Agreement and deliver and receive instructions for the Account pursuant to the SplashPayments Terms of Service and Platform shall be liable for any defect in such consent. To the extent that Platform delivers instructions to Company that are inconsistent with or contrary to the Referred Merchant’s own intent, or if the Referred Merchant indicates that it has not consented to instructions provided by Platform hereunder, Platform shall be liable and shall indemnify and hold Company harmless from any and all related claims or disputes. In operating under the Integration, each party shall be liable for the security of their respective systems. Merchant Services are provided to Referred Merchants under SplashPayments Terms of Services and under this Agreement. The only service provided to Platform hereunder is the Integration.
Platform itself and Platform shall prevent any Referred Merchant from using the Integration, Platform Services or Merchant Services to, directly or indirectly, knowingly or unknowingly assist in any illegal activity or any Prohibited Activity, all of which are listed below in the Glossary.
All of the following Persons are prohibited from using the Integration and Merchant Services: (i) Persons who appear on the U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN); (ii) Persons who are less than 18 years of age; (iii) Persons, or their Affiliates who have been previously terminated for cause by Company or any of its Affiliates; and (iv) Persons who are not both domiciled and resident in the United States. Platform shall prevent any of the foregoing from accessing the Integration, Platform Services or Merchant Services.
Company shall pay Referral Fees to Platform in respect of Referred Merchants. Where a Referred Merchant is already procuring Merchant Services from Company prior to referral hereunder, the Referral Fees shall be different as indicated on the Site or on acceptance hereof by Platform. Company shall maintain records of Referred Merchant use of the Merchant Services and shall use such records to calculate Referral Fees payable hereunder. Referral Fees shall be paid during the Term hereof so long as: (a) the Term has not expired; (b) Platform is not in default hereunder or under any other agreement with Company or any of its Affiliates; (c) no regulatory agency, such as Visa or MasterCard and no bank or other entity has authority over Referred Merchant, Company or Platform has intervened in any way to prevent the payment of such fees; (d) Company is continuing to receive its residual compensation in respect of Referred Merchants; (e) Platform has itself received the compensation from which Referral Fees are paid; and (f) Referred Merchants are not in default of their obligations under their SplashPayments Terms of Service.
Company shall oblige Merchant to perform and pay Merchant Fees for Merchant Services under the SplashPayments Terms of Service. The amount of Merchant Fees payable by a Referred Merchant shall be determined by Company in consultation with Platform. Platform acknowledges that Merchant Fees are subject to change as per the SplashPayments Terms of Service. Company shall not be liable if a Referred Merchant fails to pay Merchant Fees or creates any other liability under the SplashPayments Terms of Service or otherwise.
Nothing in this Agreement shall reduce the liability of the Referred Merchant under the SplashPayments Terms of Service.
Platform may provide services to Referred Merchant under the Platform Agreement; Company shall have no liability in respect of such services and Platform shall indemnify and hold Company harmless from and against any and all liabilities arising from or in respect of a Platform Agreement, Platform Merchants or their Customers.
Platform shall inform Company of any termination of the Platform Agreement in respect of a given Referred Merchant. This Agreement shall terminate in respect of a given Referred Merchant on any termination of their SplashPayments Terms of Service or their Platform Agreement.
Company has the right to terminate this Agreement at any time for any reason or for no reason. On any termination hereof, Platform shall immediately be blocked from accessing the Account and with respect to each Referred Merchant. Company may, at its sole and absolute discretion, terminate the Integration or its compatibility with Platform in which case this Agreement shall immediately terminate in respect thereof.
Platform may terminate this Agreement at any time on notice to Company.
All liabilities of Platform that have accrued hereunder prior to termination shall survive termination hereof.
Company reserves all rights not expressly granted to Platform in this Agreement. Company owns the title, copyright and other worldwide intellectual property rights in Merchant Services and the Integraton and all copies of the thereof. This Agreement does not grant Platform any rights to Company's trademarks or service marks, nor may Platform remove, obscure, or alter any of Company's trademarks or service marks included in the Integration or Merchant Services. All comments and suggestions concerning the services of Company provided to Company shall be the property of Company and Platform shall not have any rights therein.
Platform shall indemnify, defend and hold Company, Bank, Processor, Payment Networks, Referred Merchant and all third parties that assist in providing the Integration and Merchant Services, as well as Customers and their respective employees, directors, agents harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a third party person or entity that arises out of or relates to: (i) any actual or alleged breach of Platform representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of Company policies or the Rules; (ii) Platform wrongful or improper use of the Merchant Services or other services of Company; (iii) Platform violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) Platform violation of any applicable law; or (vi) any other party's access and/or use of Merchant Services or other services of Company with Platform’s access code or a Referred Merchant access code given to Platform.
THE SERVICES PROVIDED BY COMPANY HEREUNDER, THE INTEGRATION AND ALL UNDERTAKINGS OF COMPANY HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE INTEGRATION IS AT PLATFORM'S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY PERFORMS HEREUNDER WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
a. ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON A INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND MERCHANT ARE WAIVING MERCHANT RIGHTS TO HAVE MERCHANT CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST COMPANY. All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) (“AAA”) according to this provision and the applicable arbitration rules. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Arbitration shall take place not more than 50 miles from the office of the Company before a single arbitrator who is a lawyer practicing commercial law.
In this Agreement:
“Affiliate” means, with respect to any party, any corporation, company, partnership or other entity which is directly or indirectly controlled by such party or is directly or indirectly controlled by a person or entity that is the same as that which controls the party. For the purposes of this definition, control shall mean ownership of half or more of the voting interests in an entity;
“American Express” means American Express Travel Related Services Company Inc.;
“Application” means an electronic or paper form completed by a Referred Merchant in relation to procuring the Merchant Services which shall form a part of the SplashPayments Terms of Service;
“Bank” means a member of a Payment Network that has sponsored Company as a payment services provider, payment facilitator or otherwise to supply the Merchant Services and that acquires Card Transaction funds through Payment Networks. Bank shall also include Processor;
“Card” means a payment card or account number issued by a Payment Network member to a Cardholder pursuant to a valid agreement between the Cardholder and the Issuing Bank;
“Cardholder Data” means information associated with a Card, such as account number, expiration date, and CVV2;
“Customer” means any Person that procures or seeks to procure products or services from a Referred Merchant;
“Integration” means a secure reciprocal connection of the Company and Platform systems by which data is exchanged between them in respect of Referred Merchants and their Customers in a format that is acceptable to Company;
“Issuing Bank” means a member of a Payment Network that issues Payment Network-branded Cards pursuant to the Rules;
“MasterCard” means MasterCard International Incorporated;
“Merchant Fees” means the fees of Company for which Referred Merchant is liable in exchange for the Merchant Services under the SplashPayments Terms of Service;
“Merchant Services” means payment processing services of Company and its processor and acquiring bank, the Site, any software, programs, services, documentation, tools, hardware, internet-based services, components thereto provided directly or indirectly to Referred Merchant by Company;
“Payment Network” means Visa, MasterCard, American Express and such other payment networks as Company indicates are compatible with the Services;
“Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity;
“Platform Agreement” means an agreement between Referred Merchant and Platform pursuant to which Referred Merchant retains the Platform to access the Merchant Services on behalf of the Referred Merchant;
“Platform” the entity entering into this Agreement with Company;
“Processor” means a payment processor that has contracted with Company to assist Company in delivering the Merchant Services;
“Product” means any product or service offered for sale or sold by Referred Merchant;
“Prohibited Activity” means any adult content; airlines, including charter airlines; alimony, child support, or other court-ordered payments; bidding fee auctions, including penny auctions; brand or reputation damaging, potential or otherwise, including bestiality, child pornography, escort services, mail order brides, and occult; buyers clubs, discount clubs or membership clubs; check cashing, or payment for a dishonored check or for an item deemed uncollectible by another merchant; computer repair or maintenance services; commodity trading or security trading; cruise lines; credit counseling or credit repair agencies; credit protection or identity theft protection services; counterfeit or possibly counterfeit goods, or products that infringe on the intellectual property rights of others; debt collection, consolidation, or reduction services; deceptive, unfair, predatory products, services or activities, or prohibited by the card payment networks; digital currency; discount medical or dental plans including discount insurance; discount coupon merchants or online sites; distressed property sales and marketing; door to door sales; drugs, alcohol, or drug paraphernalia, pseudo-pharmaceuticals, substances designed to mimic illegal drugs, or items that may represent them; factoring, liquidators, bailiffs, bail bondsmen; financial services or instruments, such as cash advances, bill payment, loans or loan payments, money orders, money transfers, prepaid cards, wire transfers, or sales of money orders or foreign currency; gambling or betting, including lottery tickets, casino gaming chips, off-track betting, sports forecasting or odds making, fantasy football, memberships on gambling-related internet sites and wagers at races, contests, sweepstakes, and offering prizes as an inducement to purchase goods or services; hate, violence, racial intolerance, or the financial exploitation of a crime; high interest rate non-bank consumer lending including payday lending and title loans; infomercial merchants; internet pharmacies or pharmacy referral sites; inbound or outbound telemarketing businesses including lead generation businesses; investment or “get rich quick” merchants, businesses or programs; licensed or franchised goods or services, such as apple products; marijuana dispensaries and related products or services; marketing activities involving “pay only for shipping” and/or “free trial” periods; medical equipment; multi-level marketing businesses, pyramid or ponzi schemes; merchants offering special incentives; negative option, renewal, or continuity subscription practices; obscene or pornographic items; pawn shops; pharmaceuticals, including medical marijuana; prepaid phone cards or phone services; prostitution, escort services, massage parlors, and other potentially sexually related services; real estate or motor vehicle sales; rebate or upsell programs; scrip-dispensing terminal; selling of mobile minutes; selling or sales of social media activity; stored value or quasi-cash; timeshares, timeshare resales and related marketing; tobacco, cigarettes, or e-cigarettes; unlawful activities or items, or activities or items that encourage, promote, facilitate or instruct others regarding the same; violent acts towards self or others, or activities or items that encourage, promote, facilitate or instruct others regarding the same; virtual currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exist in the virtual world; weapons, including replicas and collectible items, or ammunition or other accessories; weight loss programs; if merchant falls within the following exclusions, merchant will not accept the American Express card; equities (including stocks, bonds, or any other ownership position in a corporation); goods or services to be delivered more than two (2) months in the future, with an intention of gaining return on investment; internet auctions; political parties; telecommunications (including wireless, cable and internet); travel industry (including car rental, lodging, and other travel tour operators); in addition, merchant may not use the service for; impersonating any person or entity or falsely claiming an affiliation with any person or entity; collecting, or attempting to collect, personal information about merchants or third parties without their consent, or using such information except as necessary to use the service; sending unsolicited offers, advertisements, proposals, or junk mail or spam to others. this includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation materials, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signature; accepting payments for goods or services provided by someone other than merchant; providing merchant itself or others with a cash advance from a credit card; any illegal purpose, or violating any local, state, national, or international law, statute, or regulation, including, without limitation, laws governing intellectual property, taxation, and data collection and privacy; defaming, harassing, abusing, threatening, or defrauding others; posting, transmitting, or distributing content that is false, misleading, unlawful, obscene, indecent, lewd, pornographic, hateful, abusive, inflammatory, or that violates the rights of others (including rights of publicity or privacy); damaging, disabling, overburdening, or impairing Company, including without limitation, using the service in an automated manner; interfering with another merchant's enjoyment of the service, by any means, including by uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code; competing with Company or Company's business partners; sending or receiving what Company considers to be funds for something that may have resulted from fraud or other illegal behavior; abusing the payment card system or violating the rules, in the reasonable opinion of the card payment networks or Company; operating outside the united states; acting as a money services business or money transmitter; transferring funds between bank accounts held in the same name; creating an account that is linked to another account that has engaged in any of the foregoing activities. Company may use evidence other than merchant account information to determine whether merchant control an account in someone else's name, including but not limited to internet protocol addresses, common business names, phone numbers, and mailing addresses; or any activity deemed by Company to be unauthorized, illegal, or criminal;
“Referral Fees” means a commission payable by Company to Platform on consideration of a Referred Merchant being referred to Company hereunder that enters into a SplashPayments Terms of Service. The amount of Referral Fees payable shall be posted on the Site or indicated to Platform on Integration. The amount of Referral Fees shall vary at the discretion of Company without prior notice or consent of Platform.
“Rules” means the rules and regulations of Payment Networks applicable to the Services;
“Site” means http://www.splashpayments.com/;
“Transaction” means an actual or attempted Card payment transaction pursuant to SplashPayments Terms of Service;
“Visa” means Visa U.S.A., Inc., Visa International;