This Affiliate Agreement ("Agreement") is made effective as of the date set forth below by and
between Charge Today, LLC doing business as ChargeToday.com, located at 1500 Beville Road, Suite
606, Daytona Beach, Florida 32114 ("ChargeToday") and the entity and/or individual whose name and
address are set forth in the online form above (hereinafter referred to as "Affiliate")
shall set forth the terms and conditions under which ChargeToday and Affiliate shall transact business.
Whereas, Affiliate engages in the business of marketing services to business entities that accept
credit cards as payment for goods and services ("Merchants"); and
Whereas, ChargeToday wishes to expand its market share by retaining Affiliate to assist in
marketing its credit card, debit card, ACH, POS equipment, software and related good and services (the
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
SECTION ONE - MARKETING THE MERCHANTS
1.01. Appointment. Subject to the terms and conditions of this Agreement, ChargeToday hereby
appoints Affiliate on a non-exclusive to solicit Merchants for ChargeToday. Affiliate shall contact
entities and individuals in order to obtain information from them as to whether they are interested in
purchasing the ChargeToday Services. Affiliate generally must obtain all the following information when
its submits the potential Merchant to ChargeToday:
- First Name,
- Last Name
- Physical (non P.O.) Address, State and Zip Code
- Valid Telephone Number - A "Valid Telephone Number" is defined as one that has
ten (10) numeric characters and has passed the error checking scripting in the
ChargeToday websites that require the area code to match that of one that resides in
the state provided by submitter in form data capture.
ChargeToday reserves the right to require additional information from Affiliate on a case by case basis.
1.02. Approval of Marketing Materials. Affiliate shall only use those marketing and
promotional materials as provided and approved by ChargeToday. Affiliate shall not use any of its own
marketing or promotional materials to solicit Merchants under this Agreement. Affiliate shall not make
any changes to the marketing and promotional materials provided by ChargeToday without
ChargeToday's prior written approval. Affiliate shall use only those marketing and promotional materials
that comply with all Unites States, state, local and any other applicable laws.
1.03. Acceptable Merchants. Affiliate shall market for Merchants, if by e-mail, only by using
opt in e-mail addresses for persons that have specifically given permission to be sent e-mails by Affiliate.
All opt-in email recipients must be verified with an authentic time, date and IP stamp of the recipient that
matches the current email address that has been used by the Affiliate. Affiliate shall not use "spam" or
fax transmissions to obtain Merchants. Spam includes, but is not limited to, any email that is sent by
Affiliate that does not include an authentic time, date and IP stamp which is in direct relation to the email
address used by Affiliate to solicit Merchants. Upon request by ChargeToday, Affiliate must, within
forty-eight (48) hours provide ChargeToday with its opt in email list plus any other related information in
order for ChargeToday to verify Affiliate's compliance with the terms and conditions of this Agreement.
Any failure to provide this information, or any other information as set forth in this Agreement, shall
constitute a Default under section 3.02 of this Agreement.
1.04. Independent Contractors. The relationship of ChargeToday and Affiliate is that of
independent contractors. Neither Affiliate nor Affiliate's employees, consultants, contractors or agents
are agents, employees, partners or joint ventures of ChargeToday, nor do they have any authority to bind
ChargeToday by contract or otherwise to any obligation. They will not represent to the contrary, either
expressly, implicitly, by appearance or otherwise.
1.05. Compliance With Laws. Affiliate will comply with all applicable international, national,
state, regional and local laws and regulations in performing its duties hereunder and in any of its dealings
with respect to the Merchants.
1.06. Affiliate Covenants. Affiliate will: (i) conduct business in a manner that reflects
favorably at all times on the good name, good will and reputation of ChargeToday; (ii) avoid deceptive,
misleading or unethical practices that are or might be detrimental to ChargeToday or the public; (iii) make
no false or misleading representations with regard to ChargeToday; (iv) not publish or employ, or
cooperate in the publication or employment of, any misleading or deceptive advertising material with
regard to ChargeToday; and (v) not transmit any "spam" (unsolicited commercial email or unsolicited
SECTION TWO - PAYEMENT OF FEES
2.01. Fees. ChargeToday shall pay Affiliate a fee per as set forth on the attached Exhibit A for
each Merchant that actually purchases goods and services from ChargeToday. Nothing in this Agreement
shall obligate ChargeToday to accept any particular number of Merchants or any Merchant at all from
2.02. Setoff Rights, Security Interests. ChargeToday shall have the right of setoff against any
funds credited to or owing from ChargeToday to Affiliate for any obligation of Affiliate to ChargeToday,
including, without limitation, obligations of Affiliate under this Agreement. This right of setoff may be
exercised by ChargeToday at any time and without notice to Affiliate whether or not the obligations of
Affiliate to ChargeToday are then due. As security for all existing and future obligations of Affiliate to
ChargeToday, Affiliate hereby grants to ChargeToday a security interest in all money, instruments and
other property of Affiliate that may now or hereafter be held by ChargeToday, all deposit accounts of
Affiliate now or hereafter arising, all rights and interests of Affiliate under this Agreement, and all rights
of Affiliate to receive compensation hereunder.
SECTION THREE - TERM AND TERMINATION
3.01. Term. The initial term of this Agreement shall be for a period of one (1) year,
commencing on the date first set forth below. This Agreement shall thereafter be automatically renewed
for additional terms of one (1) year each unless either party notifies the other no later than thirty (30) days
prior to the end of the current term that it does not wish to renew this Agreement.
3.02. Default. Either party shall have the right to terminate this Agreement at any time if:
(a) the other party breaches any of the provisions of this Agreement and fails to cure such
breach within thirty (30) days of its receipt of written notice thereof from the non-breaching party; or
(b) the other party (i) fails to pay its debts or perform its obligations in the ordinary course
of business as they mature; (ii) becomes the subject of any voluntary or involuntary proceeding in
bankruptcy, liquidation, dissolution, receivership, attachment or assignment or composition for the benefit
3.03. Failure to Comply with Rules. ChargeToday may immediately terminate this Agreement
for any material default knowingly or intentionally caused by Affiliate with respect to its obligations to
comply with ChargeToday's policies or rules if ChargeToday reasonably determines that the default is of
such a serious nature that an opportunity to cure such default is not practical or warranted. ChargeToday
may, at its sole discretion, effect such termination upon delivery of written notice to Affiliate without
regard to any provisions for cure of default.
3.04. Regulatory Demand. If any federal or state regulatory agency having jurisdiction over the
subject matter of this Agreement makes a demand that either ChargeToday or any of its vendors
discontinue or substantially this program, either party in its sole discretion may terminate this Agreement
upon written notice to the other, in which case neither party shall be deemed to be in default by reason of
3.05. Termination by ChargeToday. ChargeToday may cancel this Agreement for any reason, or
not reason at all, by providing Affiliate with seven (7) days notice.
3.06. Effect of Termination. The compensation to Affiliate set forth in section 2.01 and
described in Exhibit A will be paid to Affiliate, however, Affiliate shall not be entitled to any
compensation under this Agreement if (a) Affiliate breaches its obligations under sections1.02, 1.03, 1.05,
1.06, 4.01, 4.02, 4.03, 4.05, 4.07 or 4.08 or (b) this Agreement is terminated based upon sections 3.02,
3.03 or 3.04.
SECTION FOUR - OBLIGATIONS.
4.01. Confidential Information. The parties acknowledge that in their performance of their duties
hereunder either party may communicate to the other (or its designees) certain confidential and
proprietary information, including without limitation information concerning the Merchants and the
know-how, technology, techniques, or business or marketing plans related thereto (collectively, the
"Confidential Information") all of which are confidential and proprietary to, and trade secrets of, the
disclosing party. Confidential Information does not include information that: (i) is public knowledge at
the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving
party after disclosure by the disclosing party other than by breach of the receiving party's obligations
under this section or by breach of a third party's confidentiality obligations; (iii) was known by the
receiving party prior to disclosure by the disclosing party other than by breach of a third party's
confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to
the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not
disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party's
Confidential Information; (ii) not use the disclosing party's Confidential Information in any fashion
except to perform its duties hereunder or with the disclosing party's express prior written consent; (iii)
disclose the disclosing party's Confidential Information, in whole or in part, only to employees and agents
who need to have access thereto for the receiving party's internal business purposes; (iv) take all
necessary steps to ensure that its employees and agents are informed of and comply with the
confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect
the confidentiality of the Confidential Information received hereunder and exercise at least the same
degree of care in safeguarding the Confidential Information as it would with its own confidential
information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The
receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the
Confidential Information. The receiving party shall cooperate and assist the disclosing party in
preventing or remedying any such unauthorized use or disclosure.
4.02. Indemnification. Affiliate agrees to indemnify, defend, and hold harmless ChargeToday,
its employees, members, directors, managers, officers or agents from and against any loss, liability,
damage, penalty or expense (including attorneys' fees, expert witness fees and cost of defense) they may
suffer or incur as a result of (i) any failure by Affiliate or any employee, agent or affiliate of Affiliate to
comply with the terms of this Agreement; (ii) any warranty or representation made by Affiliate being
false or misleading; (iii) any representation or warranty made by Affiliate or any employee or agent of
Affiliate to any third person other than as specifically authorized by this Agreement, (iv) the manner or
method in which Affiliate generates Merchants or otherwise performs its services pursuant to this
Agreement, (v) negligence of Affiliate or its subcontractors, agents or employees, or (vi) any alleged or
actual violations by Affiliate or its subcontractors, employees or agents of any governmental laws,
regulations or rules.
(a) During the period that this Agreement is in effect and for the two-year period
immediately following termination of this Agreement, Affiliate shall not directly or indirectly through
another entity (i) induce or attempt to induce any employee of, or consultant to, ChargeToday or its
subsidiaries to leave the employ of, or consultancy to, ChargeToday or its subsidiaries, or in any way
interfere with the relationship between ChargeToday or its subsidiaries and any employee or consultant
thereof, (ii) hire any person who was an employee of, or consultant to, ChargeToday or its subsidiaries at
any time during the twelve-month period immediately prior to the date on which such hiring would take
place without the written consent of a ChargeToday officer (it being conclusively presumed by the parties
so as to avoid any disputes under this section that any such hiring within such twelve-month period is in
violation of clause (i) above); (iii) call on, solicit or service any customer, supplier, licensee, licensor,
consultant, contractor or other business relation of ChargeToday or its respective subsidiaries in order to
induce or attempt to induce such person to cease doing business with ChargeToday or its subsidiaries, or
in any way interfere with the relationship between any such customer, supplier, licensee, licensor,
consultant, contractor or other business relation and ChargeToday or its subsidiaries (including, without
limitation, making any negative statements or communications about ChargeToday or its subsidiaries); or
(iv) call on, solicit, or take away or attempt to call on, solicit, or take away any of ChargeToday's customers
and vendors on whom Affiliate called or with whom Affiliate became acquainted during his/her/its
contractual relationship with ChargeToday, either on its behalf or that of other person, firm, or corporation.
(b) If, at the time of enforcement of the covenants contained in this section above
(the "Protective Covenants"), a court shall hold that the duration, scope or area restrictions stated herein
are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration,
scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or
area and that the court shall be allowed to revise the Protective Covenants to cover the maximum
duration, scope and area permitted by law. Affiliate agrees that the Protective Covenants are reasonable
in terms of duration, scope and area restrictions and are necessary to protect the goodwill of
ChargeToday's businesses and agrees not to challenge the validity or enforceability of the Protective
(c) If Affiliate breaches, or threatens to commit a breach of, any of the Protective
Covenants, ChargeToday and its subsidiaries shall have the following rights and remedies, each of which
rights and remedies shall be independent of the others and severally enforceable, and each of which is in
addition to, and not in lieu of, any other rights and remedies available to ChargeToday or its subsidiaries
at law or in equity:
(i) the right and remedy to have the Protective Covenants specifically
enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of
the Protective Covenants would cause irreparable injury to ChargeToday and its subsidiaries and that
money damages would not provide an adequate remedy to ChargeToday or its subsidiaries; and
(ii) the right and remedy to require Affiliate to account for
and pay over to ChargeToday or its subsidiaries any profits, monies or other benefits derived or received
by Affiliate as the result of any transactions constituting a breach of the Protective Covenants.
4.04. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT,
SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE MERCHNATS, WHETHER FORESEEABLE OR
UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED
WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT
LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO,
DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR
USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF
OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO
CIRCUMSTANCES SHALL CHARGETODAY'S TOTAL LIABILITY TO AFFILIATE OR ANY
THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE
AMOUNTS PAID BY AFFILIATE UNDER THIS AGREEMENT TO A MAXIMUM OF TEN
THOUSAND DOLLARS ($10,000.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS
BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.
4.05. Taxes. Affiliate shall pay, indemnify and hold ChargeToday harmless from (i) any sales,
use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on
ChargeToday's income, and (ii) all government permit fees, customs fees and similar fees which
ChargeToday may incur with respect to this Agreement. Such taxes, fees and duties paid by Affiliate
shall not be considered a part of, a deduction from, or an offset against, payments due to ChargeToday
4.06. Affiliate represents and warrants to ChargeToday as follows:
(a) Affiliate has the full power and authority to execute, deliver and perform this
Agreement. This Agreement is valid, binding and enforceable against Affiliate in accordance with its
terms and no provision requiring Affiliate's performance is in conflict with Affiliate's obligations under
any charter or any other agreement (of whatever form or subject) to which Affiliate is a party or by which
it is bound.
(b) If other than a sole proprietorship, Affiliate is duly organized, authorized and in good
standing under the laws of the state of its organization and is duly authorized to do business in all other
states in which Affiliate's business make such authorization necessary or required.
(c) Except as otherwise disclosed in writing by Affiliate to ChargeToday on or before the
effectiveness of this Agreement, neither Affiliate nor any principal has been subject to any (i) criminal
conviction (excluding traffic misdemeanors or other petty offenses); (ii) bankruptcy filings; (iii) Internal
Revenue Service liens; (iv) federal or state regulatory administrative or enforcement proceedings; or (v)
restraining order, decree, injunction or judgment in any proceeding or lawsuit alleging fraud or deceptive
4.07. Trademarks. Subject to the limitations in this Agreement, ChargeToday grants Affiliate the
nonexclusive right and license to use ChargeToday's trademarks (the "Trademarks") during the term of
this Agreement solely in conjunction with the marketing, promotion and resale to the Merchants.
ChargeToday grants no rights in the Trademarks or in any other trademark, trade name, service mark,
business name or goodwill of ChargeToday except as licensed hereunder or by separate written agreement
of the parties. Affiliate agrees that it will not at any time during or after this Agreement assert or claim
any interest in or do anything that may adversely affect the validity of any Trademark or any other
trademark, trade name or product designation belonging to or licensed to ChargeToday (including,
without limitation registering or attempting to register any Trademark or any such other trademark, trade
name or product designation). During the term of this Agreement, Affiliate agrees not to use any
trademark, trade name or product name confusingly similar to a trademark, trade name or product name
of ChargeToday, except for the Trademarks expressly licensed hereunder. Upon expiration or
termination of this Agreement, Affiliate will immediately cease all display, advertising and use of all of
the Trademarks and will not thereafter use, advertise or display any trademark, trade name or product
designation which is, or any part of which is, similar to or confusing with any Trademark or with any
trademark, trade name or product designation associated with ChargeToday or any of ChargeToday's
products and services.
4.08. Ownership of the Merchants. Both parties acknowledge that ChargeToday owns any and
all rights in the Merchants, all information contained therein submitted by Affiliate to ChargeToday and
to any merchants once the Merchants become customers of ChargeToday. Affiliate will provide all
reasonable assistance to ChargeToday to perfect, protect and transfer ChargeToday's right, title and
interest in the Merchants and all related information.
SECTION FIVE - GENERAL PROVISIONS
5.01. Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared
shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate
the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.
5.02. Drafting. No provision of this Agreement shall be construed against any party merely
because that party or counsel drafted or revised the provision in question. All parties have been advised
and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect
of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the parties and
therefore any ambiguity or uncertainty shall be interpreted accordingly.
5.03 Waiver. No term or provision of this Agreement shall be deemed waived and no breach
excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived
or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or
implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
5.04. Assignment. Neither party shall assign, delegate, subcontract, license, franchise, or in
any manner attempt to extend to any third party any right or obligation under this Agreement except as
otherwise permitted herein without the prior written consent of the other party; provided, however,
ChargeToday may assign this Agreement and its rights hereunder to a purchaser of all or substantially all
of its assets or stock.
5.05. Amendments. Except as otherwise provided in this Agreement, no provision of this
Agreement may be amended, modified or waived except by a written agreement signed by both parties.
5.06. Notices. All notices and other communications required or permitted under this
Agreement shall be in writing and given by personal delivery, telecopy (confirmed by a mailed copy), or
first class mail, postage prepaid, sent to the addresses set forth herein.
5.07. Section Headings: The section headings contained in this Agreement are for convenient
reference only, and shall not in any way affect the meaning or interpretation of this Agreement.
5.08. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and such counterparts shall together constitute one and the same
5.09. Entire Agreement; Binding Effect. This Agreement, including all schedules, exhibits and
attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of
the subject matter contained herein, and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or written, by any officer,
partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall
inure only to the benefit of the parties hereto and their respective successors and assigns. Nothing in this
Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or
entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.
5.10. Jurisdiction; Venue; Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida (irrespective of its choice of law principles).
The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or
based upon this Agreement or the business relationship between the parties hereto shall be brought in
federal or state court in Daytona Beach, Florida. Each party hereby agrees that such courts shall have
exclusive personal jurisdiction and venue with respect to such party, and each party hereby submits to the
exclusive personal jurisdiction and venue of such courts.
5.11. Attorney's Fees. Should suit be brought to enforce or interpret any part of this
Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs,
including expert witness fees and fees on any appeal
5.12. Survival. All representations, covenants and warranties shall survive the execution of this
Agreement, and sections 2.02, 4.01, 4.02, 4.03, 4.04, 4.05, 5.07 and 5.08 shall survive termination of this
IN WITNESS THEREOF, this agreement has been duly executed by the parties hereto, effective
as of the date and year first above written.