Plink ISO Agreement

Plink® is a technology platform which, among other features, processes bankcard data to provide new information to businesses (the “Technology”). Independent Sales Organization (“ISO”) wishes to incorporate features of the Technology to merchants for the purpose of initiating or deepening a merchant processing relationship (“Merchants”). Under this Agreement, Plink, which is owned by Fanbank, Inc., a Delaware Corporation (“Company”), shall provide merchant leads to ISO so that ISO can market and sell the Technology as an aspect of their merchant service. Additionally from time to time ISO may engage in marketing and selling other features of the Plink platform in accordance with the terms, and subject to the conditions, of this Agreement (the “Program”). Company and Agent are sometimes each referred to as a “Party”, and together as the “Parties.”

The Parties agree as follows:

1. License of Company Product

   1. Subject to this Agreement and its terms and conditions, Company hereby grants to ISO a free, non-exclusive, non-transferable and revocable license during the term of this Agreement to use the Company trademarks, logos, marketing materials and URLs (“Licensed Marks”) provided by Company. Company may modify, amend or revoke any license granted pursuant to this Agreement at any time and from time to time by giving ISO written or electronic notice thereof.

2. Legal Agreements
   

   1. The Program. As part of its participation in the Program and in acting as Company’s agent, ISO hereby agrees and consents to the terms of this Agreement and any other requests and rules set by Company from time to time, in its reasonable discretion, in connection with ISO’s ongoing participation in the Program. ISO shall cooperate with the Company and act in good faith.
   2. Legal Agreements. In entering this Agreement, ISO further accepts the terms and rules set in Company’s Merchant Terms of Service (“Merchant Terms”) and recognizes and accepts the Company’s Privacy Policy (“Privacy Policy”), as applicable to Company’s provision of the Technology to Merchants and particularly regarding ISO’s adherence to the Privacy Policy in all matters involving privacy of Merchant information.
   3. Sales Materials. Company will make available to ISO, without charge, various sales resources as part of the Program.
   4. Prohibited Activities. ISO shall not associate Company or any marketing materials with any content that is unlawful, or otherwise objectionable in Company’s sole discretion. 
   5. Permissible Use of Company Marks. ISO expressly agrees to comply with all the terms herein in using the logos or other Plink-branded marks (“Licensed Marks”) and in creating marketing materials. Company shall provide specifications and other instructions from time to time as to ISO’s permissible use of the Licensed Marks in creating marketing materials and promoting the Technology. 
   6. Exclusivity. This Agreement does not create an exclusive agreement between ISO and Company (“Parties”). Both Parties will have the right to recommend similar products and services of third parties and to work with other Parties in connection with the marketing and use of similar services and products of third parties.
   7. Liabilities. ISO shall be solely responsible for its actions and operations under this Agreement.
   8. Non-solicitation. Company will not directly or indirectly attempt to hire or contract agents employed or contracted by the ISO.

3. Reserving Territories, Lead Distribution and Territory Exclusivity
   

   1. Lead Distribution. Company is to provide all reasonable information to contact qualified leads for ISO to use in opening a sale and submitting a Merchant to Company. Leads shall be provided in a CSV file format as available or otherwise as determined by Company. A maximum of (50) leads will be distributed in the first release (Table 1) with subsequent lead releases determined by ISO performance and availability.
   2. Determining an Exclusive Territory. Company will reserve territories as submitted to the exclusion of competing independent sales organizations. Where two or more organizations submit the same territory, Company will distribute (50) leads to all organizations and award the territory to the ISO with the highest performance at the discretion of Company.
   3. Reserving Territories. ISO may reserve up to (10) territories by submitting a form (the “Territory Reservation Form”) provided by the Company. ISO may submit and reserve more than ten (10) territories with express permission from the Company.
   4. Exclusivity and Saturation. Leads which have not activated the Technology within two (2) months shall no longer be deemed exclusive. Leads that have not been activated within three (3) months shall no longer be contacted by ISO for the purpose of selling Technology. Company shall only be able to supply ISO available leads. When there are no further available leads, the Company does not have any obligation to provide leads to ISO. 
   5. Reliance on Banks. As the Company is subject to rules governing the relationship with Issuing Banks and the ongoing participation of the banks, neither of which the Company can control, ISO understands that the terms of this Agreement may be modified or discontinued at any time. 

4. Merchant Activation of the Technology
   

   1. Schedule. At such time as Company has leads for ISO, Company shall notify ISO of lead availability. ISO agees to make necessary preparations for training and launch of the Program. ISO and Company shall conduct training two weeks prior to launch.
   2. Activating Merchants. Included with each lead shall be unique log in credentials for each merchant. ISO shall provide these log in credentials to merchants and provide training for merchant activation of the Technology.
   3. Supporting Activation. Company shall provide call center support for ISO in the event Merchant desires to speak to Company or Company can assist ISO in answering merchant questions or further ISO training.

5. Upgrades and Programs
   

   1. Plink reserves the right to sell Plink products to Merchants which complement the Program.
   2. From time to time Plink shall provide ISO promotional codes that ISO may use to offer additional value to merchants. Plink is under no obligation to provide and ISO is under no obligation to market promotional codes.

6. Cost of Program
   

   1. There is no fee associated with this Agreement.

7. Term and Termination
   

   1. Term. This Agreement shall become effective as of the Effective Date and shall continue until terminated by Company in accordance with terms described herein, or by the mutual consent of ISO and Company (the “Term”).
   2. With or Without Cause. Company or ISO shall have the right to terminate this Agreement at any time for any or no reason by giving written notice.
   3. Effect of Termination. From and following the date of termination of this Agreement, ISO rights under this Agreement shall terminate, and ISO shall not be entitled to market or sell the Technology. Company shall continue to support the Technology for ISO. Sections 2.7, 7.3, 8.3, 8.5, 8.7, 8.8, 8.9, 8.12, and 8.13 hereof shall survive termination of this Agreement.

8. General
   

   1. Modification. Company may modify this Agreement from time-to-time at its reasonable discretion by notifying ISO in writing or via electronic means. If ISO objects to any such change, ISO may terminate this Agreement by delivering notice thereof in writing or via electronic means within seven (7) days of implementation of Company’s implementation of any such change. 
   2. Assignment. ISO may not assign or transfer this Agreement or any of ISO’s rights or obligations hereunder without Company’s prior written consent. Company may assign this Agreement or any of its rights or obligations hereunder at any time.
   3. Intellectual Property Rights. All intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) in Company’s Marks, the Company Service and related content and technology around the world (“Company IP Rights”) are and will remain the exclusive property of Company. The licenses granted by Company to ISO under Section 1 is granted solely under the terms of this Agreement and in furtherance of its objectives.
   4. No Waiver. Either Party’s failure to enforce the other Party’s strict performance of any provision of this Agreement will not constitute a waiver of the first Party’s right to subsequently enforce such provision or any other provision of this Agreement.
   5. Limited Warranties. Both Parties warrant that at all times during the Term they will acknowledge the terms and rules set in Company’s Merchant Terms of Service (“Merchant Terms”) and will comply with all applicable laws, regulations, codes of practice, as well as this Agreement and Privacy Policy. During the Term and after termination of this Agreement for any reason whatsoever, ISO expressly undertakes not to do anything that might reasonably be expected to damage the business, interests or reputation of Company, its representatives, or the Company Service.
   6. Disclaimer of Warranty. Other than Company’s express warranty under the previous subsection 5.5, Company makes no other warranty, express or implied, of any kind and Company expressly disclaims any and all warranties and conditions, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, availability, security, title, and/or non-infringement of the subject matter of this Agreement.
   7. LIMITATION OF LIABILITY. NEITHER COMPANY NOR ANY OFFICER, EMPLOYEE, DIRECTOR OR ANY OTHER REPRESENTATIVE OF COMPANY SHALL BE LIABLE TO ISO OR TO ANY THIRD PARTY, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS TERMINATION, IN CONTRACT, PRE-CONTRACT, TORT OR OTHERWISE FOR (A) ANY LOSS (INCLUDING LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS OR ANTICIPATED SAVINGS) OR (B) ANY LOSS OF GOODWILL OR REPUTATION. SUCH LOSSES INCLUDE, WITHOUT LIMITATION, ANY SPECIAL, INDIRECT, INCIDENTAL, STATUTORY, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES AS WELL AS ANY LOSSES OR DAMAGES CAUSED BY INTERRUPTION OF OPERATIONS. NOTWITHSTANDING ANY OTHER CIRCUMSTANCES OR UNDERSTANDINGS SURROUNDING ANY RELATIONS AMONG THE PARTIES, COMPANY’S ENTIRE LIABILITY TO ISO UNDER THIS AGREEMENT SHALL NOT EXCEED $100 U.S. FOR ANY AND ALL CLAIMS FOR DAMAGES OF ANY KIND MADE BY ISO UNDER THIS AGREEMENT, AND BY ENTERING THIS AGREEMENT ISO RECOGNIZES THE LIMITATIONS HEREIN ON COMPANY’S LIABILITY.
   8. Indemnification. Company shall hold ISO harmless from and against all claims, damages, infringement of intellectual property, and liabilities of every kind (except those arising solely as a result of ISO's negligence) that may arise as a result of or related to Company's rendering of services under the Licensed Marks. ISO shall defend, indemnify and hold Company, its affiliates, officers, directors, employees, agents of licensors (the “Plink Indemnified Parties”) harmless from and against any and all damages, costs, liabilities, losses and expenses whatsoever (including but not limited to reasonable attorneys’ fees) incurred from any claim, suit, action, demand or proceeding brought by any third party against the Plink Indemnified Parties arising from any of the following: (a) any breach by  ISO of the Agreement; (b) the negligence, gross negligence or willful misconduct of ISO; or (c) a failure by ISO to comply with the laws and regulations referenced hereinbefore. 
   9. Confidential Information. Each of the Parties agrees that all information of a confidential nature received from the other Party before, during and after the conclusion of the Agreement shall remain confidential. Information shall in any event be considered confidential if related to pricing, discounts, or if designated as confidential by either of the Parties. 
   10. Force Majeure. A Party shall not be obliged to perform any of its obligations herein if it is prevented from doing so by a situation of force majeure. “Force majeure” events shall include events beyond the reasonable control of a Party, including acts of God, acts of government, acts of nature, strikes or riots, as well as improper performance by Company’s suppliers or defects in objects, materials or software of third parties.
   11. Entire Agreement. This Agreement shall constitute the entire agreement between the Parties regarding the subject matter hereof and reflects the Parties’ respective obligations and commitments herein.
   12. Non-Disparagement. During the Term and thereafter, ISO agrees that it will not disparage Company or any of its officers, directors or employees or otherwise take any action that could reasonably be expected to adversely affect Company’s reputation. For purposes of this Agreement, “disparage” shall mean any negative statement, whether written or oral, about the Company or any of its officers, directors or employees. The Parties agree and acknowledge that this non-disparagement provision is a material term of this Agreement.
   13. Governing Law and Jurisdiction. Any dispute arising under or in connection with this Agreement or related to any matter which is the subject of this Agreement shall be subject to the exclusive jurisdiction of the state and/or federal courts located in the State of California, USA. Further, this Agreement has been entered into and this Agreement shall be governed by the substantive laws of the State of California, USA without regard to its conflict of laws principles. Each of the parties consents to the exclusive jurisdiction of the courts of the State of California, USA in connection with any dispute arising under this Agreement and hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum non conveniens, to the bringing of any such proceeding in such jurisdictions.