Referral Partner Agreement

Recitals:

WHEREAS, 411 Funding is a Funding company that evaluates a merchant’s ability to qualify for Capital based upon revenue including but not limited to; Credit Card Processing Volume, Monthly Revenue and purchasing of future receivables, and then evaluates eligibility in house and if applicable submits the file to a network of funders. We are a Brokerage Firm and a Direct Funder, that has established a large network of alternative Funders “Merchant Program”;

WHEREAS, 411 Funding markets its Merchant Program to merchants seeking working capital to operate an existing business, but to date has not been able to obtain traditional funding, including funding from personal assets, family and friends, SBA loans, loans or lines of credit from financial institutions, etc.;

WHEREAS, a merchant who desires to accept the offer provided from 411 Funding or one of our funders will enter into an agreement with the respective funder. The funder pays out a fixed commission amount on that file which is determined upon approval “Funder Payout”;

WHEREAS, in addition to its own marketing efforts, 411 Funding contracts with referral partners to sell and refer merchants to our Merchant Program to be funded in house or funded using our network of Funders, for which the referral partner can earn a commission based on the lender Payout provided directly to 411 Funding, so long as the referral partner does not receive any portion of the merchant’s business funding and does not charge the merchant any fee for its service;

WHEREAS, the RP desires to contract with 411 Funding to serve as a referral partner on an independent contractor basis for the sole purpose of procuring merchants to enter into the Merchant Program based upon approvals by our Funders, and the RP will use its best efforts to market and sell the Merchant Program.

NOW, THEREFORE, in consideration of the mutual terms, conditions, and covenants set forth in this Agreement, the parties agree as follows:

Agreement:​

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1.Incorporation of Recitals. The foregoing Recitals are expressly incorporated into and made a part of this Agreement.

2.Appointment of the RP as Referral Partner. The parties hereby agree that the RP shall serve as a referral partner to market 411 Funding's Merchant Program, subject to the terms and conditions herein. The RP shall market and sell the Merchant Program in a professional and lawful manner and is responsible for understanding and complying with the pertinent laws and regulations of the state(s) in which the RP operates. The RP may market the Merchant Program in any of 411 Funding's areas of marketing, and all such areas remain open and nonexclusive. Merchants who enter into an Agreement with any of our Funders are charged Fee's directly by the funder under that agreement, and, because the RP will receive a commission based on the Funder Payout, the RP shall not independently charge merchants any fees of any kind relating to 411 Funding's or any of our partners' services, without first obtaining prior written approval of 411 Funding to charge any fee. The RP also shall not receive any portion of the funding a merchant receives under the Merchant Program.

3.Commissions. If the RP procures the sale of the Merchant Program to an approved merchant and has not collected any fee or other remuneration from the merchant, 411 Funding shall pay RP a commission of the Funding or Funder Payout paid to 411 Funding. This amount will be determined by the RP relationship manager and will vary. The RP may invoice 411 Funding for a sale to a client once the amount has been obtained for the client, and the Funder payout has been received. 411 Funding shall be responsible for accounting to the RP for all Funder Payouts on funding originated by the RP and the commissions earned for that sale. 411 Funding shall pay a commission on a Funder Payout on funding originated by the RP within five (5) days of the receipt of Funder Payout to 411 Funding. Payments will be paid to the RP via ACH (direct deposit) into the RP's designated account. If any scheduled payment falls on a weekend or holiday, payment will be made on the following business day. 411 Funding shall pay all commissions on a 1099 basis, and 411 Funding will issue an IRS Form 1099 to the RP for such earnings. The RP acknowledges and agrees that all compensation for the RP's sales shall be paid directly to the RP, and not to the RP through any third party.

4.Ownership and Termination of Merchant Relationship. The RP acknowledges that a merchant enters into the Agreement with 411 Funding or any of its affiliates, and agrees that 411 Funding shall maintain ownership of the relationship with the merchant procured by the RP. The RP acknowledges and agrees that 411 Funding retains the absolute right to accept or reject any Merchant that the RP submits to 411 Funding, and that 411 Funding retains the absolute right to terminate a Merchant Agreement in the event a merchant breaches any provision of that agreement. If a merchant defaults or misses more than 4 daily payments within the first 21 payments, the RP shall refund 411 Funding the full amount of the commission 411 Funding paid to the RP on that sale, including any commission that the RP might have shared with its employees, agents and/or sales associates or representatives within or outside of the RP's organization. If the full commission is not fully refunded within five (5) days of 411 Funding's request for refund, the RP hereby authorizes 411 Funding to withhold future commission payments or ACH the full amount directly from the account where the commission payments were originally sent. If no future commissions are available and payment is not made 411 Funding reserves the right to take legal action.

5.Independent Contractor Status. Nothing in this Agreement or in the performance thereof shall be construed to create any partnership, joint venture, principal agent or employer / employee relationship between 411 Funding and RP or any of their respective affiliates or subsidiaries.

6.RP Acknowledges and agrees that it shall be solely responsible for establishing its own sales office at its sole expense, independent of 411 Funding's offices, for purposes of marketing the Merchant Program and merchant funding products. RP further acknowledges and agrees that it shall be solely responsible, without limitation, for managing the activities of its employees or sales associates or representatives, and for any actions taken by its employees and/or sales associates or representatives in connection with the sale of the Merchant Program. 411 Funding shall not be liable in any manner for the actions of any such employees, sales associates or representatives, or any third parties performing duties on behalf of RP.

7.RP's Responsibilities for Its Own Operating Expenses. RP acknowledges and agrees that it shall be responsible for all expenses it incurs in connection with its business and operation of its office, including but not limited to any obligation to purchase and maintain unemployment and/or worker's compensation insurance coverage for its employees and/or sales associates or representatives, if any, and the computation and payment of all sales commissions earned by its employees or sales associates or representatives, if any, from sales of the Merchant Program. 411 Funding shall not be liable in any manner for any compensation owed to any such employees, sales associates or representatives, or any third parties.

8.Assignability of Duties. With the prior written consent of 411 Funding, the RP may, from time to time, delegate duties under this Agreement to subsidiaries; provided, however, that the RP shall remain responsible and liable for any such duties and obligations.

9.Warranties and Representations of the RP. The RP hereby represents and warrants as follows:

  • a. that the RP is thoroughly familiar with the Merchant Program, the alternative funding sources and 411 Funding's marketing guidelines and materials, and will use that knowledge and those materials as a framework to ensure that merchants are fully and properly informed as to the Merchant Program;
  • b. that the RP will represent the Merchant Program and 411 Funding's services accurately;
    • that the RP will represent the Merchant Program and 411 Funding's services accurately;
  • c. that the RP understands and is properly familiar with pertinent laws and regulations in the state(s) where it markets and sells the Merchant Program, and is in full compliance with those laws and regulations when it markets and sells the Merchant Program;
    • that the RP understands and is properly familiar with pertinent laws and regulations in the state(s) where it markets and sells the Merchant Program, and is in full compliance with those laws and regulations when it markets and sells the Merchant Program;
  • d. that the RP will not use any merchant's credit profile for any purpose other than to submit the profile to 411 Funding as part of the Merchant Program;
  • e. that the RP will inform merchants that the Merchant Program involves obtaining personal credit, and there will be multiple hard inquiries placed on the clients' credit profile by the respective Funders;
  • f. that the RP will inform merchants that, in the event they do not qualify for the Merchant Program and are declined, they have no future obligation to 411 Funding;
  • g. that the Funder Payout covers all associated costs for the merchant to participate in the Merchant Program, including any remuneration for the RP;
  • h. that no portion of the business funding provided to the merchant may be paid to the RP;
  • i. that the RP is not bound by any restrictive covenant or prior agreement with any third party that would prohibit it from entering into this Agreement and providing the services contemplated hereunder. If the RP is in fact bound by such a restrictive covenant, the RP shall indemnify 411 Funding for any claim or liability, including, without limitation, legal fees and court costs, judgments, fines, penalties, settlements and other amounts resulting from RP's violation of any such restrictive covenant.


10.Indemnity and Hold Harmless. To the extent permitted by law, the RP will indemnify 411 Funding against any claim or liability and will hold 411 Funding harmless from and pay any expenses (including, without limitation, legal fees and court costs), judgments, fines, penalties, settlements and other amounts arising out of or in connection with any act or omission of the RP, or its employees, agents, sales associates or representatives, relating to the marketing and sales of the Merchant Program.

11.Termination. Either party may terminate this Agreement at any time by giving notice of termination to the other. Termination of this Agreement will be without prejudice to the rights and obligations accrued to the date of termination.

12.Dispute Resolution Agreement. The parties hereby agree that any and all disputes, controversies or claims that arise out of or relate to this Agreement or the relationship between the RP and 411 Funding, including determination of the scope or applicability of this dispute resolution agreement, shall be decided exclusively in binding arbitration in New York law shall govern, without regard to conflict of law principles. The parties further agree that the arbitration shall be conducted on a confidential basis and administered by the American Arbitration Association ("AAA") pursuant to its Commercial Arbitration Rules; provided, however, that before resorting to arbitration, the parties agree to endeavor first to settle the dispute by mediation administered by the AAA pursuant to its Commercial Mediation Procedures. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce, and notwithstanding that New York substantive law applies, the arbitration shall be governed by the Federal Arbitration Act (9 U.S.C., secs. 1-9). The arbitrator is duty bound to follow the terms and conditions of this Agreement and shall rule on any dispositive motions prior to commencement of the actual hearing. Any decision or award shall be reasoned and in writing and may be confirmed in a court of competent jurisdiction. The parties agree to share equally the AAA filing fee and all other fees, and each party will bear its own costs and attorney fees incurred in connection with the arbitration proceeding. For claims under $10,000, either party can choose whether the arbitration will be carried out based only on documents submitted to the arbitrator, or by a hearing in person or by telephone. The parties agree that each party may bring claims or disputes against the other party only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, including, without l imitation, federal or state class actions, or class arbitrations. Accordingly, the arbitrator's authority to resolve and make written awards is limited to claims between 411 Funding and the RP alone. Under the arbitration procedures outlined above, an arbitrator shall not combine or consolidate more than one party's claims, and no class or representative or private attorney general theories or prayers for relief may be maintained in the arbitration, without the written consent of all parties to the arbitration proceeding. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.

13.Mutual Non-Disparagement. The RP agrees that neither it nor its agents or representatives will, at any time, make any verbal or written comments about 411 Funding that are, or could be interpreted to be, disparaging or derogatory or that paint 411 Funding or its services, policies or practices in a negative light. 411 Funding agrees that neither it nor its agents or representatives will, at any time, make any verbal or written comments about the RP that are, or could be interpreted to be, disparaging or derogatory or that paint the RP in a negative light. This non-disparagement clause shall not preclude either party from any good faith response to any inquiries under oath or in response to governmental inquiry.

14.Entire Agreement. Accepting the Confidentiality Agreement executed concurrently with this Agreement, this Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this agreement shall not be binding upon either party except to the extent incorporated in this agreement.

15.Amendment and Waiver. This Agreement may be amended only by an instrument in writing signed by each party, and no right or obligation of either party under this Agreement may be waived except by an instrument in writing signed by the party waiving the provision, right or obligation.

16.Binding Nature of Agreement and Assignment. This Agreement shall be binding upon the parties and their respective successors and assigns. Neither party may transfer or assign any of its rights or obligations under this Agreement without the prior written consent of the other, and any such transfer or assignment without such written consent shall be null and void; provided, however, that 411 Funding may transfer and assign its rights and obligations under this Agreement without the RP's consent to any entity which succeeds to all or substantially all of 411 Funding's business and assets. Any transfer of obligations in accordance with this Section will relieve the transferor of its liabilities with respect to those obligations.

17.Severability of Provisions. If any provision of this Agreement or the application of any such provision to any person or circumstance is held invalid, the remainder of this Agreement, and the application of such provision other than to the extent it is held invalid, will not be invalidated or affected thereby.

18.Notices. Notices under this Agreement shall be in writing and shall be sent by overnight delivery or certified mail to each party at its address set forth above or, in the event of a change in any address, then to such address as to which notice of the change is given. Notice shall be deemed given on receipt.

19.Section Headings. Section headings are for convenient reference only and shall not affect the meaning or have any bearing on the interpretation of any provision of this Agreement.

IN WITNESS WHEREOF, each party to this Agreement, intending to be legally bound, has caused it to be executed as of the date first above written.

Confidentiality Agreement:

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Concurrently with execution of that certain Referral Partner Agreement between the RP and 411 Funding, the RP hereby agrees that in connection with its relationship with 411 Funding as a referral partner, the RP will become familiar with processes, procedures, information and materials which 411 Funding has spent a great deal of time and money to develop, which are essential to 411 Funding's business, and which comprise confidential information and trade secrets of 411 Funding (collectively, "Trade Secrets"). The term "Trade Secret" does not include any process, procedure, information or material which is currently in the public domain or which hereafter becomes public knowledge in a way that does not involve a breach of an obligation of confidentiality. Notwithstanding the foregoing, the RP acknowledges and agrees that any process, procedure, information or material of which the RP becomes aware during its relationship with 411 Funding is presumed to be a Trade Secret unless 411 Funding advises the RP in writing that it is not a Trade Secret.

To induce 411 Funding to contract with the RP, and in consideration hereof, the RP agrees that it will not during the term of the Referral Partner Agreement and at all times thereafter, either directly or indirectly, use or disclose to anyone any Trade Secret.

The RP's obligations and the rights of 411 Funding under this Confidentiality Agreement will remain in full force and effect regardless of (i) the reason for or cause of the termination of the Referral Partner, or (ii) whether 411 Funding or the RP was at fault.

The RP acknowledges that the violation of any of the provisions of this Confidentiality Agreement will cause irreparable loss and harm to 411 Funding which cannot be reasonably or adequately compensated by damages in an action at law, and, accordingly, that 411 Funding will be entitled to injunctive and other equitable relief to enforce the provisions of this Confidentiality Agreement and to prevent or cure any breach or threatened breach thereof; but no action for any such relief shall be deemed to waive the right of 411 Funding to an action for damages. The RP also agrees that it will not be a defense to any request for such relief that 411 Funding has an adequate remedy at law. For purposes of any proceeding under or with respect to this Confidentiality Agreement, the RP submits to the jurisdiction of the courts of the State of New York and of the United States located in Suffolk County, New York; and the RP agrees not to raise and the RP waives any objection to or defense based on the venue of any such court or based on forum non-conventions.

The rights and remedies of 411 Funding are cumulative and the exercise of or enforcement of any one or more of them will not preclude 411 Funding from exercising or enforcing any other right or remedy. The delay or failure by 411 Funding to exercise any of its rights in any one instance will not preclude 411 Funding from exercising its rights at a later time in that instance or at any other time in any other instance.

This Confidentiality Agreement may be amended, and any provision of this Agreement may be waived only by an instrument in writing signed by 411 Funding.

This Confidentiality Agreement will be governed by and construed in accordance with the law of the State of New York.

This Confidentiality Agreement will inure to the benefit of 411 Funding's successors and assigns, including, without limitation, the assignee of any Trade Secret. Accordingly, at any one time, more than one person may be the beneficiary of this Agreement.


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