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Channel Referral Partner Agreement

This Channel Referral Partner Agreement (the “Agreement”) is made and entered into as of [Today date_format=long] (the “Effective Date”), by and  between Aspire Partners, LLC, a limited liability company organized and existing under the laws of the State of Georgia (hereinafter referred to as “Company”), and   (hereinafter referred to as “Channel Referral Partner”).

W I T N E S S E T H:

     WHEREAS, the Company is engaged in the business of offering (i) accounts payable transactions on behalf of third-party providers to enable businesses to make electronic payments through a variety of means, and (ii) virtual card rebates on accounts payable spend (the “AP Services”); and

    WHEREAS, the Company desires to retain the services of the Channel Referral Partner for the purpose of promoting the AP Services; and

    WHEREAS, the parties hereto deem it to be in their best interests to set forth in writing the terms and conditions under which said appointment is to be made;

    NOW, THEREFORE, in consideration of the mutual promises and covenants of the parties contained herein, the parties hereby agree as follows:

SECTION 1.    APPOINTMENT
1.1    Services.   The Company hereby appoints the Channel Referral Partner for the purpose of promoting the AP Services and the Channel Referral Partner hereby accepts such appointment (the “Appointment”).  Channel Referral Partner will perform the “Referral Services,” which involves promoting the Company and the AP Services through the Channel Referral Partner’s contacts to Candidates. The term “Candidate” means a customer or prospective customer of Channel Referral Partner that: (i) is directly solicited by Channel Referral Partner to use the AP Services, (ii) is not a current Company customer (i.e., not currently using the AP Services), and (iii) is approved by Company after Channel Referral Partner submits a customer profile form to Company.  In addition to the foregoing, during the Term (as defined below) Channel Referral Partner shall (a) make no false or misleading representations with regard to Company or its third-party provider; and (b) refrain from making any representations, warranties or guarantees to Customers or Candidates that are inconsistent with any customer agreement or any literature previously authorized by Company.

SECTION 2.    INDEPENDENT CONTRACTOR
2.1    Relationship of Parties.   The sole relationship of the parties is that of independent contractors and nothing in this Agreement or otherwise shall be deemed or construed to create any other relationship, including one of employment, joint venture or agency.  Channel Referral Partner shall be solely responsible for any taxes of any type, including social security taxes, workers’ compensation taxes or costs, unemployment compensation taxes or costs, or any other taxes or charges related to Channel Referral Partner’s or Channel Referral Partner’s personnel’s receipt of compensation and performance of the Appointment under this Agreement.  Channel Referral Partner agrees to indemnify and hold the Company harmless from any claims, demands, levies, or assessments related to the payment or nonpayment of any of the taxes described above. 

2.2    Benefits.   The parties acknowledge that neither Channel Referral Partner nor its employees shall be entitled to receive any benefits which employees of Company are entitled to receive and shall not be entitled to workers’ compensation, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing, or social security on account of their work for Company.

SECTION 3.    Term AND TERMINATION
    3.1        Term.  The term of this Agreement shall begin on the Effective Date and shall continue until terminated as set forth in Section 3.2, below (the “Term”).  

3.2        Termination.   This Agreement may be terminated as follows:

3.2.1    Bankruptcy.   In the event of the bankruptcy, insolvency, or assignment for the benefit of creditors of all or a substantial part of the assets of the Channel Referral Partner, whether voluntary or involuntary, or an equivalent adjudication, the Company may immediately terminate the Agreement by providing written notice to the Channel Referral Partner;

3.2.2    Material Breach.   The Agreement may be terminated by either party upon the giving of ten (10) days’ prior written notice to the other party in the event of a material breach of this Agreement by the other party, if such breach is not cured within ten (10) days of notice of said breach; and

3.2.3    Written Notice.   The Agreement may be terminated by either party hereto upon thirty (30) days’ prior written notice delivered to the other party.

3.3        Effect of Termination.   Upon a termination of this Agreement, however effectuated, both parties and their personnel shall return all documentation and any copies thereof to the other party specifically including, but not limited to, any Confidential Information (as defined below), and any information received and/or deduced from customers concerning their stated or perceived needs for the AP Services and/or any other products or services.

SECTION 4.     COMPENSATION
4.1    Commissions.   Subject to the terms and conditions of this Agreement, during the Term and in consideration of the services provided during the Appointment, the Company shall pay to the Channel Referral Partner, and the Channel Referral Partner shall accept commissions only, which shall be determined pursuant to the “Channel Referral Partner Compensation Program” described on Exhibit A attached hereto and incorporated herein by this reference (the “Channel Compensation”).  Such Channel Compensation shall be payable in accordance with the Channel Referral Partner Compensation Program.

4.2    Effect of Termination.   The Channel Referral Partner shall be entitled to payment of the Channel Compensation, pursuant to Section 4.1, above, for as long as the Company gets paid from its third-party provider.  This Section 4.2 shall survive the termination of this Agreement.

SECTION 5.    INDEMNIFICATION
5.1    Indemnification. Channel Referral Partner shall indemnify Company from, and defend Company against, any and all liability or expenses (including attorneys’ fees and expenses as reasonably incurred) arising out of or relating to any injuries of any kind resulting from Channel Referral Partner traveling to meet with a Candidate in the performance of this Agreement.

SECTION 6.    RESTRICTIVE COVENANTS
6.1    Agreement Not to Solicit Customers.  During the Term of this Agreement and for a period of two (2) years following the termination of this Agreement, Channel Referral Partner, its employees, subcontractors, officers, and agents shall not (except on behalf of or with the prior written consent of Company), either directly or indirectly,  (1) solicit, contact, or call upon, or (2) attempt to solicit, contact, or call upon any Candidate with whom Channel Referral Partner or any of its employees, subcontractors, officers, and agents has had contact during the course of the Agreement  for the purposes of providing (i) accounts payable transactions on behalf of third-party providers to enable businesses to make electronic payments through a variety of means, and (ii) virtual card rebates on accounts payable spend.

6.2    Agreement Not to Solicit Employees.  During the Term of this Agreement and for a period of one (1) year following the termination of this Agreement for any reason whatsoever, Channel Referral Partner and its employees, subcontractors, officers, and agents shall not, either directly or indirectly, solicit, divert or hire, or attempt to solicit, divert or hire, any person employed by or contracted with Company, whether or not the employment of any such person is pursuant to a written agreement for a determined period or at will.

6.3    Agreement Not to Disclose Confidential Information.

6.3.1    Confidential Information.  “Confidential Information” shall mean any confidential business, technical or data processing information, trade secret or other proprietary information acquired by Channel Referral Partner or any of its employees, subcontractors, officers, or agents in the course of carrying out the tasks hereunder or as a result of access to the Company, whether or not conceived of or prepared by Channel Referral Partner or any of its employees, subcontractors, officers, or agents whether or not reduced to writing, and whether or not in human readable or machine readable form, including, without limitation, any information concerning data processing concepts, techniques, or procedures, software in various stages of development, discoveries, ideas, inventions, operations, data, designs, drawings, diagrams, specifications, documentation, research, know-how, compilations of information, records, costs, purchasing data, financial data, accounting, marketing and development plans, sales, pricing, profits, business plans or procedures, customer data, employee information and other information not generally known to non-Company personnel.  Confidential Information also includes any information described above which Company obtains from another party and treats as proprietary or designates as confidential information, whether or not owned or developed by Company.  Confidential Information shall cease to be Confidential Information after it has been voluntarily disclosed to the public by Company or independently developed and disclosed by others or has otherwise entered the public domain through lawful means.  In any dispute with respect to these exclusions, the burden of proof will be on Channel Referral Partner to show that the exclusion applies.  

6.3.2    Agreement Not to Disclose Confidential Information.  The Channel Referral Partner agrees to maintain in confidence all information and Confidential Information received from the Company under this Agreement, not to disclose the same to third parties, and to obligate all personnel having access to such information to adhere to this obligation of confidentiality.  These obligations of confidentiality shall not apply to any information or Confidential Information that is or become public knowledge.  The Channel Referral Partner further agrees that neither it nor any of its employees, subcontractors, officers, or agents shall, during the Term of this Agreement or for a period of one (1) year thereafter, without the prior written consent of the Company, use, disclose, or otherwise make available to any person or entity, except as required in performing services under this Agreement, any Confidential Information or other information received from the Company under this Agreement. Notwithstanding the foregoing, the Company shall not be deemed to have waived any extended period of coverage or any rights or remedies it may be entitled to under the Georgia Trade Secrets Act.  In addition to the foregoing, promptly upon expiration or termination of this Agreement or earlier, if requested by the Company, except to the extent specifically provided elsewhere in this Agreement, Channel Referral Partner shall return, erase or destroy all Confidential Information in its possession or control, including Confidential Information stored in any computer memory or data storage apparatus, and, at the Company’s request, provide an affidavit that Channel Referral Partner retains no Confidential Information in any form whatsoever.

SECTION 7.  GENERAL
7.1    Entire Agreement.  This Agreement constitutes the entire agreement between the parties and supersedes any and all previous representations, understandings, discussions or agreements between Company and Channel Referral Partner as to the subject matter hereof.  The parties further agree that they are not relying upon any representations, statements, or agreements from the other as a basis for entering into this Agreement except for those expressly set forth in this Agreement.  This Agreement may only be amended by an instrument in writing signed by Company and Channel Referral Partner.

7.2    Governing Law.  This Agreement shall be subject to the laws of the State of Georgia.  Venue shall lie in the State of Georgia for all causes of action under this Agreement.

7.3    Notices.  All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, if not, then on the next business day, (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.  All communications shall be sent to the Company at the address on the signature page below and to the Channel Referral Partner at the address set forth on the signature page below. 

7.4    No Waiver.  The failure of either party to insist upon a strict performance of or to seek remedy of any one of the terms or conditions of this Agreement or to exercise any right, remedy or election set forth herein or permitted by law shall not constitute nor be construed as a waiver or relinquishment for the future of such term, condition, right, remedy or election, but such items shall continue and remain in force and effect.  

7.5    Assignment.  This Agreement may not be assigned by Channel Referral Partner without the written consent of Company, which may be withheld for any reason, and any such purported assignment, including full or partial assignment or delegation to any agent or subcontractor, is void.

7.6    Severability.  All rights and restrictions contained herein may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not under this Agreement be illegal, invalid or unenforceable.  If any term of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining terms hereof shall constitute their Agreement with respect to the subject matter hereof and all such remaining terms shall remain in full force and effect.  To the extent legally permissible, any illegal, invalid or unenforceable provision of this Agreement shall be replaced by a valid provision, which will implement the commercial purposes of the illegal, invalid or unenforceable provision.

7.7    Successors, Heirs, Assigns.  Except as otherwise provided herein to the contrary, this Agreement shall be binding upon and shall inure to the benefit of the parties to this Agreement, and their respective heirs, legal representatives, successors and assigns.

7.8    Counterparts.   This Agreement may be executed in one or more counterparts, each of which shall be deemed original, but all of which together shall constitute one and the same instrument.  Delivery of a copy of a signature by facsimile transmission or an electronic exchange methodology shall constitute a valid and binding execution and delivery of this Agreement, and such electronic copy shall constitute an enforceable original document.

7.9    Attorneys’ Fees.  Should either party institute any action or proceeding in any court to enforce any of the provisions hereof, for damages by reason of any alleged breach of any provision of this Agreement or for the enforcing of any covenant herein contained, the prevailing party shall be entitled to receive from the losing party such amounts that the court shall adjudge to be reasonable attorney’s fees for the services rendered the prevailing party in such action (including any appeal thereof).

IN WITNESS WHEREOF, the parties have executed or caused this Agreement to be executed under seal as of the day and year first above written.

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EXHIBIT A

CHANNEL REFERRAL PARTNER COMPENSATION PROGRAM

The Company shall pay Channel Referral Partner a “Revenue Share” based on the aggregate volume of a Customers’ use of Virtual Card Payments (as defined below).  

Standard Transactions are defined as Visa and Mastercard Corporate Standard or Corporate Data Rate I.  For all Standard Transactions for Customers (as defined below), the Company shall pay Channel Referral Partner a Revenue Share of .10% (10 basis points) for each such transaction where Customer is paid no more than a 1.25% (125 basis points) rebate and .05% (5 basis points) for each such transaction where Customer is paid between 1.26% (126 basis points) and 1.50% (150 basis points).  This amount will be reduced in the event a Customer negotiates a rebate on Standard Transactions of more than 1.5% (150 basis points) as described below.

Non-Standard Transactions include, but are not limited to, Enhanced Data Transactions and Large Ticket Transactions.  For all transactions for Customers that qualify as Non-Standard Transactions, the Company shall pay Channel Referral Partner a Revenue Share of .025% (2.5 basis points) for each such transaction.  For Non-Standard Transactions, End User’s rebate is typically any Interchange over and above 1.0% (100 basis points) for each such transaction.  In the event a Customer negotiates a more favorable rebate for Non-Standard Transactions, Channel Referral Partner’s Revenue Share will be reduced.

Should Company’s third-party provider enter into an agreement with a Customer where the Customer is receiving more than 150 basis points on Standard Transactions, the Channel Referral Partner agrees that the Company and Channel Referral Partner will reach an agreement regarding the basis points to be applied to the Revenue Share formula above for this Customer.

Should Company’s third-party provider enter into an agreement with a Customer where the third-party provider holds less than 95 basis points because the transaction qualifies for Discounted/LTI Interchange, the Channel Referral Partner agrees that Company and Channel Referral Partner will reach an agreement regarding the basis points to be applied to the Revenue Share formula above for this Customer.

“Virtual Card Payments” are issued through an issuing bank who is a MasterCard and Visa member, which terms shall be deemed to include Company’s third-party provider’s issuing banks.

    Channel Referral Partner shall have no claim for compensation based on any Candidate referred to Company after the expiration of the Term; however, Channel Referral Partner shall be entitled to the Channel Compensation for any Candidate that signs an agreement with Company or its third-party provider either prior to or after the expiration of the Term causing the Candidate to become a “Customer”

    The Channel Compensation shall be paid to Channel Referral Partner within thirty (30) days after Company is paid in connection with the AP Services provided to each of the Customers. 

    All Channel Compensation shall be delivered to Channel Referral Partner along with a report (the Channel Compensation Report) showing the revenue received by Company in connection with each of the AP Services and the Channel Compensation. All disputes regarding payments shall be presented by Channel Referral Partner to Company within thirty (30) days of payments and shall be handled by amicable, good faith negotiations.  Any payments not disputed within such time period shall be deemed acceptable to Channel Referral Partner.  In the event that Company disburses payments to Channel Referral Partner in excess of the earned amount, the parties hereby acknowledge the amount of overpayment is an indebtedness to Company by Channel Referral Partner, and Company shall deduct said indebtedness from any future disbursements, or if no future disbursements are due, Channel Referral Partner shall promptly pay such indebtedness to Company upon request, but in no event longer than thirty (30) business days following Company’s request. 

    Channel Compensation is subject to reduction, suspension or cancellation if Customer payments are delinquent or delayed, or become the subject of a chargeback, dispute, or legal proceedings, including without limitation, a collections action, or bankruptcy or insolvency proceeding.  

    Channel Compensation shall be restored or resumed in whole or in part, as warranted, upon resolution of the condition giving rise to a reduction or suspension.

This Channel Referral Partner Compensation Program shall survive the termination of this Agreement.

Shawn Hull
CEO,
ASPIRE PARTNERS, LLC

Notice Address:
33 South Main Street Suite 302,
Apharetta, GA 30009
E-Mail: [email protected]

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Channel Referral Parnter:
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DATE:
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