Secure Payments Partner Agreement

This Secure Payments Partner Agreement (“Agreement”) is made on (“Effective Date”) by and between BNG Holdings, Inc.(“BNG”), and (“Partner”).

Whereas, BNG is engaged in the business of providing financial transaction processing services to Merchants.

Whereas, Partner desires to offer such services to its Members.

Now, therefore, for good and valuable consideration, the parties agree as follows:

I. Definitions

The following terms when used in this Agreement will have the meanings set forth in this Section:

• “American Express” means American Express Travel Related Services Company, Inc.
• “Credit Card” means a valid and unexpired card issued by, and bearing the symbols of, Visa or MasterCard. When appropriate, the term also includes valid and unexpired cards issued by American Express, Diners Club, Discover and JCB.
• “Debit Card” means a valid automated teller machine (“ATM”) or similar card bearing the symbols of one or more of the ATM networks for which BNG processes transactions.
• “Diners Club” means Citicorp Diners Club, Inc.
• “Discover” means NOVUS Services, Inc.
• “Event of Default” means any one or more of the events listed in Section 5.3. “JCB” means Japanese Credit Bureau.
• “MasterCard” means MasterCard International, Inc.
• “Member” means a sole proprietorship, partnership, corporation or other business entity that is recognized by the Partner as a member of the Partner.
• “Merchant” means a Member that has entered into a Merchant Agreement and to which BNG provides services under this Agreement.
• “Merchant Agreement” means a written contract entered into between BNG and a Member, which authorizes the customer to participate in the Merchant Program.
• “Merchant Program” means the package of services offered by BNG to acceptable merchants under this Agreement.
• “Residual” means the amount due to Partner each month for the previous month’s transactions, calculated in accordance with the formula set forth on Appendix A, which may be amended by BNG at any time.
• “Rules” means the written rules, regulations and procedures issued by Visa, MasterCard, ATM networks, American Express, Discover, JCB and Diners Club, as amended from time to time.
• “Visa” means Visa U.S.A., Inc.

II. BNG Responsibilities

• 2.1 Marketing. BNG will work jointly with the Partner to: i) market the Merchant Program to Members; ii) make information concerning the Merchant Program readily available to Members; and iii) offer to Members other services provided by BNG.
  • A.) Partner expressly authorizes BNG to market BNG products and services to Partner’s Members.
• 2.2 Merchant Approval. BNG may accept or reject a Member as a Merchant based on criteria BNG deems prudent as part of its regular transaction processing program. Approval, review and pricing terms with respect to Merchants will be solely controlled by BNG. BNG may terminate any Member’s Merchant Agreement in accordance with the terms of such Agreement. Partner understands and agrees that Members will be permitted to participate in the Merchant Program only after: A) BNG’s approval of the Member’s merchant application; and B) execution by the Member and BNG of the Merchant Agreement.
• 2.3 Merchant Program. BNG will offer to provide to Merchants services in substantially the same manner as it does those merchants under BNG’s other merchant programs. The Merchant Program includes, but is not limited to, authorization, data capture, and settlement of Credit Card and Debit Card transactions.
• 2.4 Settlement. BNG (through a designated financial institution) will settle directly with each Merchant for all monies owed to Merchant pursuant to the Merchant Program.
• 2.5 Ongoing Responsibilities. BNG representatives will address Merchant inquires on matters related to Merchant training, chargeback procedures, equipment services and equipment repair, as appropriate.
• 2.6 Residuals. Each month BNG will remit to Partner the Residuals. The Residuals will be computed monthly as of the last day of each calendar month and will be paid within 45 days following the end of the month. At the time of each payment, BNG will provide online access to Secure Payments Partner Portal that will detail the computations used by BNG in arriving at the amount of the Residuals. BNG may amend Appendix A at any time.

III. Partner Obligations

• 3.1 Marketing.
  • A. Marketing Efforts. Partner will use its best efforts to market BNG’s Merchant Program to its Members, to make information concerning the Merchant Program readily available to its Members, and to encourage its Members to become Merchants of BNG. The Partner may produce its own materials for use in marketing BNG’s programs, but may not use such materials without obtaining BNG’s prior written consent. The current bonus and residual schedules for Partner shall be as described on Appendix A (as Appendix A may be amended from time to time upon written notice by BNG).
  • B. Determination of Referrals. BNG shall have sole discretion to determine which leads and/or referrals are attributable to Partner’s marketing efforts and/or member lists, and entitling Partner to Residuals.
• 3.2 Exclusivity. Partner will not enter into any agreement with any other entity that provides Credit Card or Debit Card processing services similar to those provided by BNG under this Agreement. Partner will endorse, and will refer Members exclusively to BNG for Credit Card and Debit Card processing services, and will not recommend any other entity to Members for services such as those to be provided under the Merchant Program.
• 3.3 Representations and Warranties of Partner. Partner represents and warrants to BNG that:
  • A. Good Standing. Partner is a corporation/limited liability company organized, validly existing and in good standing under the laws of its state of incorporation/organization and the laws of the state of its principal offices as set forth above (if different).
  • B. Full Authority. Partner has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement.
  • C. No Violation. Partner’s performance of this Agreement will not violate any applicable law or regulation or any agreement to which Partner may now or hereafter be bound.
  • D. Enforceability. This Agreement represents a valid obligation of Partner and is fully enforceable against Partner according to its terms.
  • E. Compliance. Partner will comply with the terms of this Agreement, with the Rules, and with all applicable state and federal laws, rules and regulations, and shall indemnify BNG for any fines, losses or liabilities incurred as a result of Partner’s failure to so comply.
  • F. No Litigation. Partner and its officers and directors are not a party to any pending litigation which could adversely affect Partner’s obligations hereunder, and Partner has never been fined or assessed penalties by Visa or MasterCard.
  • G. Members. Each Member is a bona-fide, legitimate business. Member is a business, validly existing and in good standing under the laws of its state of incorporation/organization and the laws of the state of its principal offices.

IV. Confidentiality

• 4.1 Confidentiality. Partner and BNG each agree that it will not use for its own purposes, will not disclose to any third party, and will retain in strictest confidence all information and data belonging to or relating to the business of the other (including without limitation the terms of this Agreement and information related to Merchants, which the parties acknowledge belongs to BNG), and that each party will safeguard such information and data by using the same degree of care and discretion that it uses to protect its own confidential information. No party will be obligated to maintain the confidentiality of information to the extent it is required to reveal such information for the purpose of performing its obligations under this Agreement.
• 4.2 Remedy. In the event of a breach of this Article IV, the parties agree that the non- breaching party will suffer irreparable harm, and that the amount of monetary damages would be impossible to calculate. Thus, the non-breaching party will be entitled to injunctive relief in addition to any other rights to which the non-breaching party may be entitled, without the necessity of proof of actual damages.

V. Term and Termination

• 5.1 Term. This Agreement will become effective on the Effective Date, and will remain in effect for an initial term of 2 years (“Initial Term”). After the initial term this agreement will automatically continue on a month-to-month term. Either party may terminate this Agreement with or without cause at any time upon 30 days prior written notice to the other party.
• 5.2 Certain Post-Termination Rights. No termination of this Agreement will affect any right of BNG under any Merchant Agreement. All Residuals will cease upon termination of this Agreement.
• 5.3 Residual Purchase Rights. BNG has the right to purchase the Partners residual at any time by paying the Partner a 10 time multiple of their average residual payout on a merchant level or a whole portfolio level.

VI. Names and Trademarks

• 6.1 BNG Name. Partner will not use BNG’s name or trademarks in any promotional or marketing materials, nor will Partner promote BNG’s programs in any way, without BNG’s prior written consent. Partner will obtain BNG’s written consent before Partner produces or distributes any materials relating to the Merchant Program. Partner acknowledges and agrees that it has no rights to use BNG’s trademarks and service marks without BNG’s prior written consent. BNG’s written consent required under this paragraph will not be unreasonably withheld.

VII. Indemnification and Limitation of Liability

• 7.1 Indemnification. Partner will indemnify, defend and hold BNG harmless from and against any and all claims, demands, losses (financial or otherwise), damages, liabilities, costs, fees, increased taxes or expenses (including without limitation, court costs and reasonable attorneys’ fees and expenses), which may be incurred or which may be claimed by any person or as a result of acts or omissions of Partner, its directors, officers, employees or agents relating to the exercise of, or the failure to exercise, Partner’s obligations under this Agreement.
• 7.2 Limitation of Liability. The liability, if any, of BNG under this Agreement for any claims, costs, damages, losses and expenses for which it is or may be legally liable, whether arising in negligence or other tort, contract, or otherwise, will not exceed in the aggregate the amount of any fee paid to Partner for the preceding 2 month period, measured from the date the liability accrues. In no event will BNG or its agents, servants, representatives or employees be liable for indirect, special, or consequential damages.

VIII. General

• 8.1 Assign Ability. Partner will have no rights to assign this Agreement without the prior written consent of BNG and any unauthorized attempted assignment will be null and void. BNG may assign its rights under this Agreement
• 8.2 Notice. All communications under this Agreement will be in writing and will be delivered in person or by mail courier, return receipt requested, addressed as indicated on the signature page of this Agreement. The parties may, from time to time, designate different persons or addresses to which subsequent communications will be sent by sending a notice of such designations in accordance with this Section.
• 8.3 Entire Understanding, Amendment. This Agreement, including the Appendix which is incorporated by reference, sets forth the entire understanding of the parties relating to its subject matter, and all other understandings, written or oral, are superseded. Except as otherwise provided in this Agreement, this Agreement may not be amended except in a writing executed by all parties.
• 8.4 Severability. If any provision of this Agreement is illegal, the invalidity of such provision will not affect any of the remaining provisions, and this Agreement will be construed as if the illegal provision is not contained in the Agreement. This Agreement will be deemed modified to the extent necessary to render enforceable the provisions hereunder, and to comply with the Rules.
• 8.5 No Waiver of Rights. No failure or delay on the part of any party in exercising any right under this Agreement will operate as a waiver of that right, nor will any single or partial exercise of any right preclude any further exercise of that right.
• 8.6 Successors and Assigns. Subject to Section 8.1, this Agreement will inure to the benefit of and will be binding upon the parties and their respective permitted successors and assigns. This Agreement will not be deemed to be for the benefit of any third party.
• 8.7 Applicable Law. The Agreement will be deemed to be a contract made under the laws of the North Dakota, and will be construed in accordance with the laws of the North Dakota without regard to principles of conflicts of law.
• 8.8 Independent Contractors. BNG and Partner will be deemed to be independent contractors and will not be considered to be agent, servant, joint venture or partner of the other.
• 8.9 Construction. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision. All sections mentioned in the Agreement reference section numbers of this Agreement. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against either party.
• 8.10 Force Majeure. Neither party will be liable to the other for any failure or delay in its performance of this Agreement in accordance with its terms if such failure or delay arises out of causes beyond the control and without the fault or negligence of such party.
• 8.11 Survival. All agreements that by their context are intended to survive the termination of this Agreement, including, but not limited to, the representations and warranties of Section 3.3, the confidentiality provisions of Article IV, the post-termination rights of Section 5.2, the liability and indemnification provisions of Article VII, the attorneys’ fee provision of Section 8.12, and the dispute resolution provision of Section 8.13, will survive termination of this Agreement.
• 8.12 Attorneys’ Fees. If any arbitration holds that a party has breached this Agreement, then the non-defaulting parties will be entitled to recover from the breaching party expenses incurred in enforcing the provisions of this Agreement, including reasonable attorneys’ fees and costs.
• 8.13 Dispute Resolution. Any dispute or claim arising out of, or in connection with this Agreement will be settled by final and binding arbitration to be held in Cass County, North Dakota in accordance with the commercial rules of the American Arbitration Affiliate (“AAA”). Judgment upon award rendered by the arbitrators may be entered in any court having jurisdiction over: A) the award; B) the party against whom enforcement is sought; or C) that party’s assets. The procedures and law applicable during the arbitration will be both the AAA rules and the internal substantive laws of North Dakota (excluding any rules regarding conflicts of law). In such arbitration, the award of decision will be rendered by at least a majority of the members of an arbitration panel consisting of 3 members, one of whom will be appointed by each of the parties hereto and the third appointed by the 2 so-appointed arbitrators. All arbitrators will be persons who are not employees or agents of any party. In the event that any party fails to appoint an arbitrator within 30 days after submission of the dispute to arbitration, such arbitrator will be appointed by the AAA.

Revenue Share Payments

(a)During the term of this Agreement, we agree to pay you a revenue share (the "Revenue Share") equal to a percentage of Net Revenue determined pursuant to the current interchange costs and processor revenue share agreements. We reserve the right, at our sole discretion, to change, modify, add or remove portions of this Revenue Share at any time without notice. For purposes of this Agreement, "Net Revenue" means all cash consideration from goods and services sold resulting directly from a merchant transaction. You acknowledge and agree that we will not be obligated to pay any revenue share unless transaction is processed.

(b)Subject to the terms and conditions of this Agreement, we will pay you the above-described Revenue Share on a monthly basis. We will send, or cause to be sent, to you payment by check, wire transfer, ACH direct deposit, PayPal or any other method offered for the Revenue Share earned, less any taxes or other amounts that we may be required by law to withhold. The method of payment will be selected by us. No interest will be paid on any amount held by us for any reason. Upon termination of this Agreement, we will send, or cause to be sent, to you, payment for the total amount of Revenue Share then owed to you as of the termination date. The final Revenue Share payment may be withheld by us for a reasonable period of time to ensure that the correct amount is to be paid after making any adjustments that may be required, including, but not limited to, adjustments for returns. If Partner is terminated for cause, we reserve the right to reverse commissions currently owed and may reverse any unlocked commissions owed for the previous 30 days prior to termination, as long as such commissions are associated with a violation of this Agreement.