Affiliate Partner Application

Business Information
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Principal 2 Information
Business Ownership %:
Home Ownership:
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First Name:
Middle Initial:
Last Name:
Residence Address Line 1 (No P.O. Box):
Residence Address Line 2:
City:
State:
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Residence Phone:
Mobile Phone:
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Email:
Date of Birth (MM/DD/YYYY):
Social Security Number:
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Driver’s License State:



AMG.INC

Affiliate Partner Agreement



This Agreement (“Agreement”) for good and valuable mutual consideration, the receipt and sufficiency of which are hereby acknowledged, is hereto entered into and understood and agreed to by the following parties on   , between:

AMG.INC

901Marquette Ave

Suite # 1500

Minneapollis MN 55401

Phone: (612) 278-3946 / Fax: (612) 278-3901

(Hereafter referred to as "Gateway Provider")





And




(Hereafter referred to as the “Merchant”)

WHEREAS, Gateway Provider offers payment processing, transaction processing, payment gateway services and Value Added Services hereinafter referred to as “Gateway Provider Services”;


WHEREAS, Affiliate Partner desires the opportunity to market and sell Gateway Provider Services to Merchants and/or Other Affiliate Partners in the United States, and Gateway Provider is willing to grant Affiliate Partner the right to do the foregoing;


NOW, THEREFORE, the parties hereto agree as follows:








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1. Use of the System.

Gateway Provider agrees to make available to Affiliate Partner during the term hereof Gateway Provider’s payment authorization and management system (the “System”) for use by clients and customers of Affiliate Partner. The System shall be Gateway Provider’s standard payment authorization system and Gateway Provider shall not be required to provide any customized solutions for Affiliate Partner unless otherwise expressly agreed by the parties.

2. Gateway Provider Obligations.

2.1 Technical Support.

Gateway Provider will provide reasonable technical support, as Gateway Provider deems appropriate, to Affiliate Partner and its Merchants s may be necessary to assist Affiliate Partner in effectively carrying out its obligations under this Agreement.

2.2 Billing.

Gateway Provider shall invoice Affiliate Partner, its Merchants or Other Affiliate Partners as applicable under the terms of this agreement. In the event Affiliate Partner believes there is a discrepancy with the fees billed to Affiliate Partner, its Merchants or Other Affiliate Partners, Affiliate Partner may dispute the fees and Gateway Provider shall promptly investigate any disputes under this Agreement and audit the disputed invoice. All disputes must be made in good faith and in writing within thirty (30) days of the invoice date. Fees billed shall be deemed accepted where written objections are not lodged within thirty (30) days from the date of the invoice. In the event the audit for service fees billed reveals Gateway Provider billed the appropriate service fees or less to Affiliate Partner, the cost of generating the audit plus the unbilled fees, if any, shall be paid to Gateway Provider by the Affiliate Partner requesting the audit. In the event the audit for service fees billed to Affiliate Partner reveals Gateway Provider billed more than the appropriate service fees to Affiliate Partner, the cost of generating the audit shall be paid by Gateway Provider and the over billed service fees shall be paid by Gateway Provider to Affiliate Partner the month after the audit was completed.

3. Gateway Provider Services.

As between the parties, Gateway Provider Services shall be hosted on servers owned or operated by Gateway Provider and/or any entity that provides bank and/or Merchant payment services including, but not limited to billing, reporting, customer service, authorization, and settlement services (“Third Party Service Providers”). Subject to the terms hereof,

Gateway Provider will use commercially reasonable efforts to provide Gateway Provider Services to Affiliate Partner, Approved Merchants and/or Other Affiliate Partners and maintain the same in an uninterrupted and error-free fashion consistent with its practices in effect as of the Effective Date, provided that the applicable Affiliate Partner, Approved Merchants and/or Other Affiliate Partners are not in default of their obligations to Gateway Provider under this Affiliate Partner Agreement, the Payment Gateway Merchant Service Agreement or Other Affiliate Partner Agreement. Affiliate Partner acknowledges that Gateway Provider Services are computer network-based services, which may be subject to outages and delay occurrences. In such an event and subject to the terms hereof, Gateway Provider shall use commercially reasonable efforts to remedy material interruptions, repairs and replacements within its capacity from time to time that are necessary to enable Gateway Provider Services to perform their intended functions in a reasonable manner subject to this Agreement. Affiliate Partner acknowledges that Gateway Provider does not warrant that such efforts will be successful. If such efforts are not successful, Affiliate Partner may terminate this agreement in accordance with Section 10. The foregoing shall constitute Affiliate Partner’s sole remedy and Gateway Provider’s sole liability in the event of interruption, outage or other delay occurrences. The foregoing notwithstanding, Gateway Provider will not be liable in any manner for any interruptions, outages, or other delay occurrences relating to Gateway Provider Services outside its control or caused by third party providers or Third Party Service Providers. Gateway Provider shall have the right, but not the obligation, to refuse to provide any Gateway Provider Service to any person, entity or Web Site, or any portion thereof, which in its sole discretion Gateway Provider considers actually or potentially obscene, indecent, offensive, defamatory, unlawful, or, infringing of any proprietary right or third party contract, or otherwise objectionable or unsuitable for posting anywhere on Gateway Provider or any Affiliate Partner or third party provider’s servers including, without limitation, any hyperlinks, framed content or meta tags contained anywhere therein.



4. Fees and Payment Terms.


4.1 Bill to Merchant and/or Other Affiliate Partner.

4.1.1 Payment Terms.

Gateway Provider will invoice the Merchant and/or Other Affiliate Partner on the t day of each








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month for any and all amounts debited or owed under this Agreement for the prior month. If fees accrue to more than $50.00 at anytime in any given month, Gateway Provider will debit the Merchant and/or Other Affiliate Partner the full amount due on a more frequent basis at Gateway Provider’s discretion. The Merchant and/or Other Affiliate Partner authorize Gateway Provider to initiate transaction entries to Merchant's and/or Other Affiliate Partner’s depositories account as set forth in the Payment Gateway Merchant Service Agreement and/or the Affiliate Partner Agreement. This authority is to remain in full force and effect until Gateway Provider has received written notification from Merchant and/or Other Affiliate Partner of its request for termination in such time as to afford Gateway Provider and Merchant and/or Other Affiliate Partner's depository institution a commercially reasonable opportunity to acknowledge and respond to the request. Gateway Provider has the right at any time to change any fees listed within the “Fee Schedule” by providing the Merchant, Affiliate Partner, or Other Affiliate Partner with at least three (3) day's prior written notice.


4.1.2 Residual Commissions.

With respect to each Approved Merchant and/or Other Affiliate Partner utilizing Gateway Provider Services during the Term, Gateway Provider will pay Affiliate Partner residual commissions on any applicable fees charged to the Merchant and/or Other Affiliate Partner less fees charged Affiliate Partner, less gateway split fees charged Affiliate Partner as set forth in the Affiliate Partner Fee Schedule. Residual commissions will be paid on the twenty-fifth day of each month following the month Gateway Provider collects the applicable fees from the Approved Merchant and/or Other Affiliate Partner. Gateway Provider will pay residual commissions to Affiliate Partner only if the applicable fees are collected from the Approved Merchant and/or Other Affiliate Partner. Residual Commissions generated by Approved Merchants and/or Other Affiliate Partners will not be paid to Affiliate Partner where payments owing from such Approved Merchants and/or Other Affiliate Partners are overdue and require collection efforts by Gateway Provider. In the event Gateway Provider is unable to collect fees from Approved Merchant and/or Other Affiliate Partner for any reason, then said fees shall be deducted from Affiliate Partner’s earned commission. Gateway Provider reserves the right to terminate the accrual and payment of residual commissions to Affiliate Partner if Affiliate Partner is in breach of this Agreement. To receive residual commissions, a $50.00 minimum amount must be earned. If the minimum $50.00 has

not been earned, residual commissions are not lost but are carried over to the next month.

5. Term.

The initial term of this Agreement shall be for a period of one (1) year, commencing on the date first set forth above. This Agreement shall thereafter be automatically renewed for additional terms of one (1) year unless either party notifies the other party in accordance with the terms of Section 19.4, Notices, no later than ninety (90) days prior to the end of the current term that it does not wish to renew this Agreement. Notwithstanding the foregoing, either party may terminate this Agreement at any time upon not less than 30 business days prior written notice in accordance with Section 19.4, Notices.

6. Limitations.

6.1 Certain Limitations.

Without limiting the generality of the foregoing, Affiliate Partner will not, directly or indirectly (a) market, promote, offer, sell or otherwise distributeany of the Gateway Provider Services except as specifically set forth in this Agreement, or (b) remove, alter, distort, cover or otherwise modify any legal notices including, without limitation, any notice of Proprietary Rights appearing in or on, or that may be included with, any content, documentation, or other materials furnished or otherwise made available to Affiliate Partner by Gateway Provider under this Agreement. Affiliate Partner acknowledges that the rights granted to market, promote, offer, sell and otherwise distribute Gateway Provider Services hereunder are subject to any and all applicable rights of third parties or Third Party Service Providers. Affiliate Partner will comply with all third party and Third Party Service Provider restrictions and limitations on use of Gateway Provider Services. This Agreement, and delivery of any Gateway Provider Services, content or any portion hereunder to Affiliate Partner or any third party pursuant to this Agreement will not be construed or interpreted so as to cause Gateway Provider to be in violation of any law of any jurisdiction or third party agreement, and Gateway Provider may at any time modify its grant of rights to the extent necessary to ensure compliance.

6.2 No Delegation.

Affiliate Partner shall not delegate performance of any of its obligations under this Agreement, other than to its own employees, without Gateway Provider prior written authorization. Affiliate Partner will ensure that all authorized persons performing such







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obligations are properly qualified and experienced to perform the same.


6.3 Use of Name and Marks.

In no event may either party or its affiliates use the other party’s names, trademarks, service marks, trade names, logos, designations, copyrights or other proprietary rights without the prior written consent of the other party.

7. Proprietary Rights.

This Agreement shall not transfer to Affiliate Partner any title or any proprietary or intellectual property rights to the System or the software utilized by Gateway Provider in connection with the System (the “Software”), documentation, or any copyrights, patents, or trademarks, embodied or used in connection therewith.

8. License Restrictions.

Affiliate Partner agrees that it will not itself, or through any parent, subsidiary, affiliate, agent or other third party: (i) copy the System or the Software; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from the System or the Software; (iii) write or develop any derivative software or any other software program based upon the System or the Software; or (iv) use the System or Software to compete with Gateway Provider in any manner.

9. Affiliate Partner Obligations.

9.1 Compliance with Legal and Regulatory Authority.

Affiliate Partner shall comply at all times with, and require Merchants and/or Other Affiliate Partners to comply with all applicable and then-current legal obligations and security measures including without limitation those issued by the United States Government, Federal, State and Municipal laws and ordinances, the Federal Trade Commission, and any other governing body. Affiliate Partner shall comply with, and require Merchants and/or Other Affiliate Partners to comply with, all Gateway Provider security protocols, notices and safeguards in effect during the term of this Agreement. Affiliate Partner warrants that it has taken such precautions as are necessary to ensure that its data and its Customer Data is protected and that its electronic systems are secure from breach, intrusion or compromise by any unauthorized third parties. In the event that Affiliate Partner’s system is breached and an unauthorized third party has access to or has accessed data or transaction data, Affiliate Partner shall notify the designated parties as required under any applicable laws or industry guidelines and shall immediately

notify Gateway Provider of such breach and take such prompt action and precautions as necessary to prevent any continuous or additional breach.


9.2 Data Security.

Affiliate Partner is solely responsible for the security of data residing on servers owned or operated by Affiliate Partner, or any third party designated by Affiliate Partner e.g., a web hosting company, processor, or other service provider, including account numbers and any other data. Affiliate Partner shall comply with all applicable laws and regulations governing the collection, retention and use by Affiliate Partner of account numbers, data and other financial information and agrees to provide notice to Affiliate Partner’s Customers on its web site that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement. Although Gateway Provider utilizes commercially reasonable efforts to safeguard data transmitted while using the Gateway Provider Services, Gateway Provider does not warrant that data will be transported without unauthorized interception or modification or that Affiliate Partner’s account or Other Affiliate Partners Data or Merchant Data will not be accessed or compromised by unauthorized third parties. Affiliate Partner acknowledges that Gateway Provider shall not be liable for any improperly processed or unauthorized transactions or illegal or fraudulent access to Affiliate Partner’s account or Other Affiliate Partner or Merchant account data or transaction data. Gateway Provider’s liability for unauthorized Transactions or improperly processed transactions solely attributable to the Gateway Provider is limited pursuant to Section 14.2.

9.3 Data Retention.


Affiliate Partner shall use proper controls for and limit access to all data or transaction data. Prior to discard Affiliate Partner shall render all data or transaction data unreadable and abide by any laws or regulations imposed on Affiliate Partner for data or transaction data destruction and/or disposal. Affiliate Partner and its Customers are solely responsible for compiling and retaining permanent records of all data and transaction data for its reference. Except as otherwise provided herein, Gateway Provider shall have no obligation to store, retain, report or otherwise provide any copies of or access to any records of transactions or other data collected or processed by Gateway Provider. Affiliate Partner acknowledges that upon termination of this Agreement, Gateway Provider shall have no obligation to provide any data or transaction data.







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9.4 Customer Service.

During the respective term of each Payment Gateway Merchant Service Agreement and/or Affiliate Partner Agreement, if the approved Merchant and/or Other Affiliate Partner is current in payment of all fees owing to Gateway Provider and is otherwise not in default under the respective Agreement, Gateway Provider shall provide customer service and technical support to such approved Merchant and/or Other Affiliate Partner.

10. Termination.

10. 1 Termination by Affiliate Partner.

Affiliate Partner may terminate this Agreement with or without cause, and for any reason, by providing Gateway Provider with at least thirty (30) days written notice of its intent to terminate this Agreement.

10.2 Termination by Gateway Provider.

Gateway Provider may terminate this Agreement immediately and without advance notice, if Affiliate Partner is in breach or default of any obligation set forth in this Agreement or if Gateway Provider determines, in its sole discretion, that Affiliate Partner's business practices are detrimental to the achievement of Gateway Provider’s business objectives.

10.3 Effect of Termination.

Upon expiration or termination of this Agreement for any reason: (i) Affiliate Partner shall promptly return to Gateway Provider all equipment, sales literature, documentation and materials supplied by Gateway Provider, and (ii) all Affiliate Partner’s rights and interests under this Agreement shall terminate and shall be given no further force nor effect.

10.4 Survival.

Upon expiration or termination of this Agreement for any reason, all rights and obligations of the parties under this Agreement shall be extinguished, except that the rights and obligations of the parties which, by their nature would naturally survive such termination.

11. Representations and Warranties.

11.1 Affiliate Partner.

Affiliate Partner represents and warrants to Gateway Provider that:

11.1.1

Affiliate Partner will conduct its business at all times in a manner that reflects favorably on the goodwill

and reputation of Gateway Provider and will not engage in any illegal or unethical business practices.

11.1.2


All representations and statements made by Affiliate Partner in this Agreement, or in any other document relating hereto by Affiliate Partner or on Affiliate Partner's behalf, are true, accurate and complete in all material respects. Affiliate Partner hereby authorizes Gateway Provider to investigate and confirm the information submitted by Affiliate Partner herein. For this purpose, Gateway Provider may utilize credit bureau/reporting agencies and/or its own agents.

11.2 Mutual.


Each party represents and warrants to the other that (a) it has full power and legal right to execute and deliver this Agreement and to perform its obligations under this Agreement, (b) no authorization or approval from any third party is required in connection with such party's execution, delivery or performance of this Agreement, (c) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, and (d) it has all right, title or interest, or valid license to use, its respective Marks, and that its grant of rights associated therewith do not violate any Proprietary Rights of any third party.

11.3 Third Party Programs.


Affiliate Partner acknowledges that Gateway Provider Services are designed for use with certain third party programs, including, without limitation, certain Internet browser software programs. Affiliate Partner will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Gateway Provider makes no warranty, express or implied, with regard to any such third party software.

11.4 No Unauthorized Warranties.


Affiliate Partner shall accurately describe Gateway Provider Services and third party services to each Merchant and/or Other Affiliate Partner. Without limiting the generality of the foregoing, Affiliate Partner will make no representation, warranty or description regarding the performance, functional characteristics or other aspects of any Gateway Provider Service or third party service that is beyond those stated in Gateway Provider then current and officially approved marketing and promotional materials for the applicable Gateway Provider Service. Affiliate Partner is not authorized to, and will not, make any representation or warranty on







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behalf of Gateway Provider except as Gateway Provider may expressly consent to in writing.

12. Indemnification.

12.1 Indemnification by Gateway Provider.

12.1.1

Gateway Provider shall defend, indemnify and hold Affiliate Partner and any of its officers, directors, agents and employees harmless from and against third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses including reasonable attorneys' fees and other litigation expenses incurred by Affiliate Partner, arising out of or relating to any infringement of a U.S. patent of any other entity or person by Gateway Provider.

12.1.2

Gateway Provider’s obligations in Section 12.1.1 do not apply if Gateway Provider Services or portions or components thereof (a) are modified by persons or entities other than Gateway Provider if the alleged infringement relates to such modification; (b) are combined with other products, processes or materials not supplied or recommended by Gateway Provider where the alleged infringement relates to such combination, or (c) continue to be used after Gateway Provider has made a non-infringing version available to Affiliate Partner (collectively, “Affiliate Partner Faults”). If Gateway Provider Services or any component thereof becomes, or in Gateway Provider’s opinion is likely to become, the subject of a claim of infringement, then Affiliate Partner shall permit Gateway Provider, at Gateway Provider’s sole option and expense, either to (i) procure for Affiliate Partner the right to continue using the Gateway Provider Services as permitted in this Agreement, or (ii) replace or modify the affected Gateway Provider Services or infringing component so that it becomes non-infringing. If, after using commercially reasonable efforts, Gateway Provider is unable to cure the infringement, either party may terminate this Agreement upon notice to the other, as provided in Section 10. Notwithstanding the above, Gateway Provider’s total liability shall not exceed the amount as stated in Section 14.2. This Section 12.1 states the entire liability of Gateway Provider to Affiliate Partner with respect to infringement of any intellectual property rights by Gateway Provider Services.

12.2 Indemnification by Affiliate Partner.

Affiliate Partner shall defend, indemnify, and hold Gateway Provider, its Third Party Service Providers,

and/or subsidiaries and any of their officers, directors, agents and employees harmless from and against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or other expenses, including reasonable attorneys' fees and other litigation expenses, incurred by Gateway Provider arising out of or relating to: (a) any breach or alleged breach by Affiliate Partner of any representation, warranty, or obligation of Affiliate Partner set forth in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Affiliate Partner or any of its employees, agents or Customers; (c) the reliability, accuracy, or legitimacy of payment Data or purchase orders submitted by Affiliate Partner or its Customers to Gateway Provider; (d) transactions submitted by Affiliate Partner or its Customers to Gateway Provider and rejected by Gateway Provider; (e) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from Affiliate Partner Fault; (f) claims by Affiliate Partner’s Customers, including, without limitation, claims relating to the disclosure of consumer data; (g) any alleged or actual violation by Affiliate Partner of any applicable laws, regulations or rules of any regulatory body or agency having jurisdiction over the subject matter hereof; or (h) any violation of Gateway Provider’s then current policies or guidelines. In the event Affiliate Partner causes fines and/or penalties to be charged to Gateway Provider, Affiliate Partner agrees to immediately reimburse Gateway Provider for said fines and penalties.



12.3 Indemnification Procedure.



The obligations of each party (“Indemnitor”) under this Section 12 to defend, indemnify and hold harmless the other party (“Indemnitee”) shall be subject to the following: (a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this section to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnitee may participate in the defense of any such claim or suit at its own expense.

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Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice Indemnitee in any way.

13. Disclaimer.

EXCEPT AS PROVIDED IN SECTION 3, GATEWAY PROVIDER SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. GATEWAY PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE GATEWAY PROVIDER SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR FREE. AFFILIATE PARTNER MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE GATEWAY PROVIDER SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING, BUT NOT LIMITED TO REPRESENTATIONS BY THIRD PARTY SERVICE PROVIDERS OR AFFILIATE PARTNERS, EXCEPT AS SET FORTH IN THE PAYMENT GATEWAY MERCHANT SERVICE AGREEMENT. GATEWAY PROVIDER SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS OR IMPLIED ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR TITLE WITH RESPECT TO THE GATEWAY PROVIDER SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. AFFILIATE PARTNER UNDERSTANDS AND AGREES THAT GATEWAY PROVIDER SHALL BEAR NO RISK WITH RESPECT TO THE SALE OF PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CHECK FRAUD OR CHARGEBACKS.

14. Limitation of Liability.

14.1

UNDER NO CIRCUMSTANCES WILL GATEWAY PROVIDER OR ANY OF ITS THIRD PARTY SERVICE PROVIDERS, PARENTS, AFFILIATES OR VENDORS, OR ANY

OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, AFFILIATES OR VENDORS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES HOWEVER OR WHENEVER ARISING, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT, INCLUDING NEGLIGENCE, CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.2

GATEWAY PROVIDER'S LIABILITY WITH RESPECT TO ANY CLAIM UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE COMPENSATION PAID TO GATEWAY PROVIDER THROUGH THE CLAIMING AFFILIATE PARTNER ACCOUNT DURING THE (30) DAYS PRIOR TO ANY SUCH CLAIM OF LIABILITY OR $1,500, WHICHEVER IS LESS.

15. Confidentiality.

Affiliate Partner agrees to keep, and to cause its affiliates, employees, officers and directors to keep, all information regarding this Agreement, the service provided by Gateway Provider, the System, and any other information regarding the business, finances, technology, customers and other information concerning Gateway Provider’s business and products known to Affiliate Partner confidential and not disclose such information, either directly or indirectly, to any third person or entity without the prior written consent of Gateway Provider. This confidentiality covenant has no temporal, geographical or territorial restriction.

16. Non-Waiver of Rights.

The failure to enforce at any time the provisions of this Agreement or to require at any time performance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the validity of thisAgreement or any part hereof, or the right of either party to enforce each and every provision in accordance with its terms.







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17. Association Regulations.


Gateway Provider agrees to maintain compliance with all applicable regulations concerning the processing of checks as mandated by the Federal Reserve.


18. Counterparts.


This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.


19. General Provisions.


19.1 Non-exclusivity.


This Agreement does not confer on either party any rights that are exclusive. Each party is free to contract with others with respect to the subject matter of this Agreement.


19.2 Relationship of the Parties.


The parties are independent contractors and nothing in this Agreement shall make them joint ventures, partners, employees, agents or other representatives of the other party. Neither party shall make any representation that suggests otherwise. The term “Affiliate Partner” is used as a description only.


19.3 Non-solicitation.


Affiliate Partner shall not directly or indirectly, whether or not for compensation, engage in any business activity, whether as an employee, proprietor, officer, director, agent, trustee, partner or creditor lending money for the purpose of establishing or operating any such business, that (a) induces or attempts to induce, directly or indirectly, any Merchant to modify or terminate such Merchant's business association with Gateway Provider or (b) interferes with, disrupts or attempts to disrupt any present business relationship, contractual or otherwise, between Gateway Provider and any Merchant, client, supplier, consultant, agent or employee of Gateway Provider. The parties acknowledge that any breach of these non-solicitation provisions will cause immediate, irreparable and continuing damage to Gateway Provider for which there is no adequate remedy at law. Consequently, the parties acknowledge and agree that in the event of any breach or violation or threatened breach or violation of these non-solicitation provisions, Gateway Provider and its successors and assigns shall be entitled to temporary, preliminary and permanent injunctive relief and restraints enjoining and restraining such breach or violation or threatened breach or violation and such other legal and equitable remedies as may be provided by applicable law,

without the necessity of posting any bond or other security, including damages, costs of suit and attorney's fees.

19.4 Notices.

Except as otherwise set forth herein, any notice required or permitted by this Agreement to be given to either party by the other, shall be deemed served, given and received when personally delivered to such party, or in lieu of such personal service, when deposited in the United States mail, registered or certified mail, postage prepaid, return receipt requested, and received, or upon expiration of three (3) days from the date of mailing, whichever is earlier, addressed to:

If to Affiliate Partner:





Attn:

If to Gateway Provider:

Altium Management Group Inc

901 Marquette Ave Suite # 1500

Minneapolis MN, 55401

Attn: Legal Counsel

19.5 Severability; Headings.

If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit,construe or describe the scope or extent of any section, or in any way affect this Agreement.

19.6 Settlement of Disputes.

Gateway Provider and Affiliate Partner desire that friendly collaboration will develop between them. Accordingly, they shall try to resolve in a friendly manner disagreements and misunderstandings connected with their respective rights and obligations under this Agreement. To the extent that a dispute cannot be resolved in a friendly manner, the dispute shall be settled by arbitration in Florida under the Commercial Arbitration Rules of the American Arbitration Association. Each party shall be entitled to discovery in accordance with the Federal Rules of Civil Procedure. Judgment on the arbitration award







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may be entered in any court having jurisdiction over the subject matter of the controversy.

19.7 Governing Law; Jurisdiction.

This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Florida, without reference or giving effect to its conflicts of law principles. Affiliate Partner hereby irrevocably consents to the personal jurisdiction of and venue in the state and federal courts located in Broward County, Florida with respect to any action, claim or proceeding arising out of or related to this Agreement and agrees not to commence or prosecute any such action, claim or proceeding other than in such courts.

19.8 Waiver.

The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.

19.9 Modifications and Waivers.

No provision of this Agreement may be modified, altered or amended except by an instrument in writing executed by the parties hereto. No waiver by either party hereto of any breach by the other party hereto of any provision of this Agreement to be performed by such other party shall be deemed a

waiver of similar or dissimilar provisions at the time or at any prior or subsequent time.

19.10 Assignment.

Affiliate Partner will not assign this Agreement or any rights hereunder without the prior written consent of Gateway Provider; except that Gateway Provider’s prior written consent will not be required for an assignment as a result of any Affiliate Partner merger, consolidation, reorganization or similar transaction involving all or substantially all of the assets of Affiliate Partner. In any such event, the assignee must assume and agree in writing to perform all of the assigning party's executory obligations and the assigning party must guarantee performance by the assignee throughout the Term. Subject to the foregoing, this Agreement will be binding upon, enforceable by and inure to the benefit of the parties and their respective successors and assigns.

19.11 Force Majeure.

Gateway Provider shall not be responsible for any failure beyond its reasonable control, including without limitation acts of God, acts or omissions of civil or military authority, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, or interruptions in telecommunications or Internet services, third party vendors or network provider services.


20. Entire Agreement.

This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, written or oral, between them as to such subject matter.

IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.

AMG INC

By:

Print:

Title:


Affiliate Partner:


By:

Print:

Title:







"I Agree"


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