RAC FINANCIAL LLC MERCHANT REFERRAL AGREEMENT
This Merchant Referral Agreement (“Agreement”) is made by and between RAC Financial LLC, a
New Jersey limited liability company headquartered at 24100 N. 91st Street, Scottsdale, Arizona 85255
(“RAC”) and the entity or individual whose name and address are set forth below on the signature page to this Agreement (“Sales Agent”) as of the date of the last signature to this Agreement (“Effective Date”). RAC and
Sales Agent are sometimes hereinafter referred to collectively as the “Parties” and each individually as a “Party.”
WHEREAS, RAC is in the business of marketing merchant services (“RAC Services”) to qualified business entities that accept credit cards as payment for goods and services (“merchants”);
WHEREAS, RAC wishes to retain Sales Agent to assist in marketing the RAC Services to
prospective merchants; and
WHEREAS, Sales Agent wishes to market the RAC Services to prospective merchants;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1 Appointment. Subject to the terms and conditions of this Agreement, RAC hereby grants Sales Agent a nonexclusive, nontransferable right to market the RAC Services to qualified businesses and refer prospective merchants to RAC for the RAC Services.
1.2 Acceptable Merchants. Sales Agent will market the RAC Services only to prospective merchants that Sales Agent reasonably believes are bona fide entities engaged in lawful business practices, which fully satisfy the criteria, policies, procedures and standards stated in and/or incorporated by reference into this Agreement and/or as communicated in writing to Sales Agent by RAC from time to time. Sales Agent will accurately describe the nature of the RAC Services to each prospective merchant in making the referral. Sales Agent is not authorized to, and will not make, any representation or warranty on behalf of RAC except as RAC may expressly consent to in writing. Further, within two (2) business days of discovering any adverse (or potentially adverse) information regarding any merchant referred by Sales Agent to RAC, or such merchant’s business activities and/or financial condition (including the inaccuracy/falsity of, or material changes to, any information about the merchant communicated by Sales Agent to RAC in connection with the merchant application process or at any point thereafter) (collectively, “Adverse Information”), Sales Agent will notify RAC in writing of such Adverse Information. Sales Agent acknowledges and agrees that Sales Agent’s duty to notify RAC in writing of any Adverse Information is a continuing duty that will survive the termination of this Agreement by either Party for any reason.
1.3 Approval of Merchants. Sales Agent acknowledges and agrees that RAC and its banking partners may approve or reject each prospective merchant in their sole discretion. Therefore, Sales Agent will not make any representation to a prospective merchant regarding the merchant’s chances of approval until Sales Agent receives confirmation in writing from RAC of its decision to approve or reject the merchant. Sales Agent further acknowledges and agrees that all aspects of the RAC Services are subject to the management and control of RAC and its banking partners, and Sales Agent will not make any representation to the contrary.
Any merchant referred by Sales Agent and approved by RAC will hereinafter be referred to as an “RAC merchant.”
1.4 Independent Contractor. The relationship created between RAC and Sales Agent by this Agreement is one of independent contractors. Neither Party’s employees, consultants, contractors or agents are employees, partners or joint ventures of the other Party; and neither Party has the authority to bind or commit the other Party by contract or otherwise to any obligation. Neither Party will engage in any conduct or make any representation to the contrary, whether expressly, implicitly, by appearance or otherwise.
1.5 Compliance With Laws/Marketing Materials. Sales Agent will comply at all times with the rules and regulations of Visa, Mastercard, Discover, American Express and all other such associations, as they may exist from time to time, and the rules and regulations of any debit network or federal or state department or agency having jurisdiction over the activities of RAC or Sales Agent (the “Rules”). In the event of any inconsistency between any provision of this Agreement and the Rules, the Rules will govern. Sales Agent covenants to accept and abide by any and all amendments and revisions to the Rules. In addition to the Rules, Sales Agent will comply at all times with all applicable international, national, state, regional and local laws and regulations in performing its duties under this Agreement and in all dealings related to or involving the RAC Services.
1.6 Sales Agent Covenants. Sales Agent will: (a) conduct business in a manner that reflects favorably at all times on the RAC Services and the good name, good will and reputation of RAC; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to RAC, the RAC Services or the public; (c) make no false or misleading representations with regard to RAC or the RAC Services; (d) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to RAC or the RAC Services; (e) promote proper use of RAC Services; and (f) make no representation, warranty or guaranty to prospective merchants with respect to the specifications, features or capabilities of the RAC Services that are inconsistent with the literature distributed by RAC.
1.7 Use of the Marks. Sales Agent may use the trademarks and service marks of RAC, Visa, Mastercard,
Discover, American Express and all other such associations (“the “Marks”) only in promoting the RAC Services in conformance with the Rules subject to RAC’s approval in its sole discretion. Upon termination of this Agreement, Sales Agent will immediately cease and desist from any further use of the Marks and/or similar marks. Notwithstanding anything to the contrary contained in this Agreement, nothing stated herein shall be construed as granting Sales Agent any right, title and/or interest in or to the Marks or the goodwill associated therewith, and Sales Agent acknowledges that it will not, at any time, during or subsequent to the term of this Agreement, do or cause to be done, any act or thing contesting or in any way impairing, or intending to impair, any part of the right, title, interest and good will represented by the Marks, or impugn in any fashion the reputation of RAC, or attack the validity of the Marks.
2.1 Ownership of Merchant Agreements and the Merchant Program. Upon approval of a merchant by RAC, RAC and its banking partners will own all rights and interests in the resulting merchant relationship and merchant agreement(s), including but not limited to all documentation and information related to the merchant and/or merchant’s relationship with RAC and its banking partners; and Sales Agent will own no right or interest in the resulting merchant relationship other than Sales Agent’s right to residual compensation payable to Sales Agent under this Agreement after accounting for all applicable offsets and deductions and subject to RAC’s buyout rights, as set forth in sections 3.2 and 3.3 below.
2.2 Non-Solicitation of RAC Merchants. During the term of this Agreement and for a period of three (3) years following the termination of this Agreement by either Party for any reason, Sales Agent will not, directly or indirectly, market services to, solicit, or cause or assist any other person to market services to or solicit, any RAC merchant. “Solicit” means to interact with an RAC merchant in any manner that would encourage the merchant to (a) modify or terminate its participation in the RAC merchant program, and/or (b) contract with sales agent and/or any competitor of RAC for merchant services. Upon demand by RAC, Sales Agent will be required to pay RAC damages in an amount equal to the revenue that RAC would have received from any RAC merchant solicited by Sales Agent in violation of this Agreement, or $5,000 (Five-Thousand Dollars) per act of solicitation, whichever is greater. RAC’s rights under this section are in addition to all other rights granted to RAC under this Agreement or otherwise at law or in equity.
3.1 Fees. RAC will pay compensation (“Residuals”) to Sales Agent as set forth of 50% of the net revenue received by RAC hereto, which is incorporated herein by this reference as though set forth in full. RAC will pay Residuals to Sales Agent by check, ACH deposit, or wire transfer (with any wire fees allocated to Sales Agent) on a monthly basis within seven (7) business days of receiving the corresponding monthly residual payment from RAC’s upstream partner; provided, however, that RAC’s obligation to pay Residuals is subject to and contingent upon RAC’s receipt of payment from its upstream partner. Subject to sections 3.3 and 4.6 below, RAC will continue to pay Residuals to Sales Agent for so long as RAC continues to collect revenue in connection with any merchant referred to RAC by Sales Agent.
3.2 Offset Rights, Security Interests. RAC will have the right of offset against any funds credited to and/or or owing from RAC to Sales Agent for any obligation of Sales Agent to RAC under this Agreement and/or any other agreement with RAC. RAC may exercise this right of offset at any time and without notice to Sales Agent irrespective of whether Sales Agent’s obligations to RAC are then due.
4.1 Term. The initial term of this Agreement will be for a period of three (3) years, commencing on the Effective Date. This Agreement will thereafter be automatically renewed for additional terms of one (1) year each unless either Party notifies the other Party no later than thirty (30) days prior to the end of the then current term that it does not wish to renew this Agreement.
4.2 Default. Either Party will have the right to terminate this Agreement at any time if: (a) the other Party breaches any provision 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; or (ii) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or assignment or composition for the benefit of creditors.
4.3 Failure to Comply with Rules. RAC may immediately terminate this Agreement for any material default knowingly or intentionally caused by Sales Agent with respect to its obligations to comply with the Rules, applicable law, and/or any other aspect of this Agreement if RAC reasonably determines that the default is of such a serious nature that an opportunity to cure such default is not practical or warranted. RAC may, in its sole discretion, effect such termination upon delivery of written notice to Sales Agent without regard to any provisions for cure of default.
4.4 Regulatory Demand. If Visa, Mastercard, NACHA or any federal, state or other type of regulatory agency having jurisdiction over the subject matter of this Agreement makes a demand that either RAC or any of its banking partners or vendors discontinue or substantially modify any of the RAC Services, either Party in its sole discretion may terminate this Agreement upon written notice to the other Party, in which case neither Party will be deemed to be in default by reason of such termination.
4.5 Termination by RAC. RAC may terminate this Agreement for any reason, or no reason at all, by providing Sales Agent with seven (7) days’ prior written notice.
4.6 Post-Termination Compensation. RAC will continue to pay Residuals to Sales Agent for so long as RAC continues to collect revenue in connection with any merchant referred to RAC by Sales Agent unless (a) RAC exercises its right to purchase Sales Agent’s Residual rights pursuant to section 3.3 above, (b) RAC terminates this Agreement for cause pursuant to section 4.02 or section 4.03, (c) following the termination of this Agreement for any other reason, Sales Agent materially breaches any obligation that survives termination, including but not limited to its non-solicitation obligations under section 2.2, or (d) the Residuals payable to Sales Agent under this Agreement post-termination fall below $250 per month in any given month – at which point any obligation on the part of RAC to continue paying Residuals to Sales Agent under this Agreement will automatically expire and permanently cease.
5.1 Confidential Information. The Parties acknowledge that in the 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 RAC Services 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.
5.2 Indemnification. Each Party agrees to indemnify, defend, and hold harmless the other Party, 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 the Party or any employee, agent or affiliate of the Party to comply with the terms of this Agreement; (ii) any warranty or representation made by the Party being false or misleading; (iii) any representation or warranty made by the Party or any employee or agent of the Party to any third person other than as specifically authorized by this Agreement, (iv) the manner or method in which the Party performs its services pursuant to this Agreement, (v) negligence of the Party or its subcontractors, agents or employees, or (vi) any alleged or actual violations by the Party or its subcontractors, employees or agents of any governmental laws, regulations or rules.
5.3 Disclaimer of All Warranties. THE RAC SERVICES ARE PROVIDED “AS IS” WITHOUT ANY
WARRANTY WHATSOEVER. RAC DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO SALES AGENT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RAC OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF RAC’S OBLIGATIONS.
5.4 Limitation of Liability. RAC SHALL NOT BE LIABLE TO THE SALES AGENT 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 RAC SERVICES, 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 RAC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL RAC’S TOTAL LIABILITY TO SALES AGENT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED TEN THOUSAND DOLLARS ($10,000.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.
5.5 Taxes. Sales Agent shall pay, indemnify and hold RAC 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 RAC’s income, and (ii) all government permit fees, customs fees and similar fees which RAC may incur with respect to this Agreement. Such taxes, fees and duties paid by Sales Agent shall not be considered a part of, a deduction from, or an offset against, payments due to RAC hereunder.
5.6 Sales Agent Representations and Warranties. Sales Agent hereby represents and warrants that: (a) Sales Agent has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against Sales Agent in accordance with its terms and no provision requiring Sales Agent's performance is in conflict with Sales Agent’s obligations under any charter or any other agreement (of whatever form or subject) to which Sales Agent is a party or by which it is bound. (b) If other than a sole proprietorship, Sales Agent 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 Sales Agent’s business makes such authorization necessary or required. (c) Except as otherwise disclosed in writing by Sales Agent to RAC on or before the Effective Date of this Agreement, neither Sales Agent 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 practices. Sales Agent acknowledges that each of the foregoing representations and warranties is material to RAC’s decision to do business with Sales Agent and RAC is relying upon the truth and accuracy of each of these representations and warranties in deciding to make this Agreement with Sales Agent.
5.7 Data Security Compliance. Sales Agent agrees to comply with privacy and security requirements under the Payment Card Industry Data Security Standard (“Card Brand Requirements”) with regards to Sales Agent’s use, access, and storage of certain credit card non-public personal information (“Cardholder Information”) on behalf of RAC. Visa, Mastercard, Discover, American Express, any ATM or Debit Networks, and the other financial service card organizations shall be collectively known herein as “Card Brands.” Sales Agent shall comply with its obligations under any applicable state or federal law or regulations as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of Cardholder Information. Sales Agent agrees that it shall protect the privacy of Cardholder Information to at least the same extent that RAC must maintain that confidentiality under the Card Brand Requirements or applicable law. Sales Agent agrees to ensure that any agent, including a subcontractor, to whom it provides Cardholder Information received from, or created or received by Sales Agent on behalf of RAC, agrees to the same restrictions and conditions that apply through this Agreement to Sales Agent with respect to such information. Upon five (5) business days’ notice or immediately upon any unauthorized access to, use or disclosure of any Cardholder Information, RAC may at its discretion, conduct an on-site audit and review of Sales Agent’s procedures and systems.
5.8 Intellectual Property. “Intellectual Property” means all of the following owned by a Party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a Party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.” Other than the express licenses granted by this Agreement, RAC grants no right or license to Sales Agent by implication, estoppel or otherwise to the RAC Services or any Intellectual Property Rights of RAC. Each Party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of RAC, in the RAC Services) and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. RAC (and not Sales Agent) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for the RAC Services and any Intellectual Property Rights incorporated therein. Sales Agent will cooperate with RAC in pursuing such protection, including without limitation executing and delivering to RAC such instruments as may be required to register or perfect RAC’s interests in any Intellectual Property Rights and any assignments thereof. Sales Agent shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from RAC in connection with this Agreement.
6.1 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.
6.2 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. The Parties have prepared this Agreement jointly and therefore any ambiguity or uncertainty shall be interpreted accordingly.
6.3 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 to such breach. 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.
6.4 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, RAC may assign this Agreement and its rights hereunder to a purchaser of all or substantially all of its assets or equity. Notwithstanding any other provisions in this Agreement, Sales Agent, if an individual, upon the occurrence of his/her death may pass on his/her rights to Residuals under this Agreement by will, trust or any other method to anyone she/he chooses in his/her sole and absolute discretion. Notwithstanding any other provisions in this Agreement, Sales Agent may assign or sell its rights to its compensation under this Agreement to a third party; provided however, RAC shall first have the right to purchase such compensation rights from Sales Agent. In the event Sales Agent seeks to sell its right to compensation to a third party, it shall provide RAC with written notice of the material terms of the third party offer, and RAC shall have thirty (30) days within which to notify Sales Agent if it will match said third party offer. If RAC elects to match the third party offer, Sales Agent shall sell its rights to compensation to RAC. In the event RAC does not elect to exercise this right of first refusal, Sales Agent may sell Sales Agent's compensation to the third party offeror on the same terms and conditions as set forth in the written notice to RAC.
6.5 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.
6.6 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.
6.7 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.
6.8 Counterparts/Facsimile Signatures. 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 instrument. The signatures to this Agreement may be evidenced by facsimile copies reflecting the Party’s signature hereto, and any such facsimile copy shall be sufficient to evidence the signature of such Party as if it were an original signature.
6.9 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.
6.10 Dispute Resolution. All disputes arising under or in connection with the Agreement will initially be referred to the senior executives of each Party. The senior executives will use their best efforts to resolve the dispute informally and amicably. If, after negotiating for thirty (30) days (or for some longer period if the Parties agree), no resolution of the dispute is reached by the senior executives, the Parties will submit the dispute to binding arbitration in Arizona pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and the procedures set forth in paragraph 6.11.
6.11 BINDING ARBITRATION AND CLASS ACTION WAIVER. ALL DISPUTES THAT CANNOT BE RESOLVED PURSUANT TO THE INTERNAL ISSUE RESOLUTION PROCESS IDENTIFIED ABOVE WILL BE SUBMITTED TO AND SETTLED BY FINAL AND BINDING ARBITRATION. THE ARBITRATION WILL TAKE PLACE IN ARIZONA, AND WILL APPLY THE GOVERNING LAW OF THIS AGREEMENT. THE PARTIES HEREBY AGREE: (I) THAT EACH CLAIM IS PERSONAL TO THE PARTIES, AND SHALL ONLY BE CONDUCTED AS AN INDIVIDUAL ARBITRATION AND NOT AS A CLASS ACTION OR OTHER FORM OF REPRESENTATIVE ACTION; (II) EXPRESSLY WAIVE ANY RIGHT TO FILE OR PARTICIPATE IN A CLASS ACTION OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS; AND (III) THE ARBITRATOR MAY ONLY CONDUCT AN INDIVIDUAL ARBITRATION, MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL’S CLAIMS, AND MAY NOT PRESIDE OVER ANY FORM OF REPRESENTATIVE OR CLASS PROCEEDING RELATING TO SUCH CLAIMS. THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATION WILL BE PERFORMED BY A SINGLE ARBITRATOR SELECTED BY THE PARTIES FROM THE NATIONAL ROSTER IN ACCORDANCE WITH AND SUBJECT TO THE COMMERCIAL ARBITRATION RULES OF THE AAA THEN IN EFFECT. THE DECISION OF THE ARBITRATOR WILL BE FINAL AND BINDING, AND JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. THE ARBITRATOR WILL BE BOUND BY THE WARRANTIES, LIMITATIONS OF LIABILITY, AND OTHER PROVISIONS OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, EACH PARTY MAY SEEK INJUNCTIVE RELIEF IN A COURT OF COMPETENT JURISDICTION, WHERE APPROPRIATE, TO PROTECT ITS RIGHTS PENDING THE OUTCOME OF THE ARBITRATION.
6.12 Jurisdiction; Venue; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona (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 Arizona. 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.
6.13 Attorney’s Fees. Should suit or arbitration 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.
6.14 Survival. All representations, covenants and warranties shall survive the execution of this Agreement, and sections 1.2, 1.7, 2.1, 3.1, 3.2, 3.3, 4.6, 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12, 6.13 and 6.14 shall survive termination of this Agreement.
IN WITNESS THEREOF, this Agreement has been duly executed by the Parties hereto, effective as of the date of the last signature below.
RAC FINANCIAL LLC
By: Michael Gombert, VP
SALES AGENT
Name:
Address:
Printed Name:
Title:
Date:
Leave this empty:
Your legal name
Your email address
Click on "Agree & Sign" to legally sign this document and agree to the WP E-Signature Terms of Use. If you have questions about the contents of this document, you can email the document owner.
Document Name: RAC FINANCIAL LLC MERCHANT REFERRAL AGREEMENT
Click on "Agree & Sign" to legally sign this document and agree to the WP E-Signature Terms of Use.
Agree & Sign
