TO BECOME A TSYS MERCHANT SOLUTIONS ON-LINE REFERRAL PARTNER, ALL APPLICANTS MUST AGREE TO THE FOLLOWING TERMS & CONDITIONS, WHICH SHALL CONSTITUTE A LEGAL AGREEMENT (THE “AGREEMENT”) BETWEEN YOU (“REFERRAL PARTNER”) AND TSYS MERCHANT SOLUTIONS, LLC (“TMS”) AND ITS AFFILIATES. FOR PURPOSES OF CLARIFICATION, AN “AFFILIATE” MEANS ANY ENTITY CONTROLLING, CONTROLLED BY, OR UNDER COMMON CONTROL WITH TMS.
BY CLICKING “I AGREE” AFTER REVIEWING THESE TERMS AND CONDITIONS, REFERRAL PARTNER IS AGREEING THAT REFERRAL PARTNER HAS READ, UNDERSTANDS, AND AGREES TO BE LEGALLY RESPONSIBLE FOR ALL TERMS AND CONDITIONS IN THIS AGREEMENT.
Referral Partner shall not compete with TMS by providing merchant account services or credit card processing software or equipment to third parties, and shall not advertise itself in any manner as offering “merchant accounts,” “card processing services,” “card processing equipment” (or any other industry related terms describing such products, or services). For purposes of this provision "compete" also includes, but is not limited to, offering services via any search engine (such as Google, MSN, or Yahoo!) for the purpose of generating leads.
Referral Partner Website(s)
Referral Partner websites will be evaluated according to our internal guidelines and policies. TMS reserves the right to decline any application based on its evaluation of the submitted website.
TMS reserves the right to remove the Referral Partner from its Referral Partner Program at any time without prior written notice if TMS determines, in its sole discretion, that the Referral Partner’s website is unsuitable for the Referral Partner Program. Unsuitable sites include, but are not limited to those that contain nudity or pornographic material, promote violence, promote discrimination, promote the use of bulk e-mail or spam, promote illegal activities, or violate intellectual property rights.
Compensation will be paid by TMS on a per Lead basis as follows:
If a Lead becomes a TMS customer, then Referral Partner shall be paid one hundred dollars ($100) per Lead, subject to the additional conditions set forth below. Changes to compensation may be made in accordance with Section 6 below.
If a Lead becomes a ProPay customer (an Affiliate of TMS), then Referral Partner shall be paid fifteen dollars ($15) per Lead, subject to the additional conditions set forth below. Changes to compensation may be made in accordance with Section 6 below.
TMS will only compensate Referral Partner if the following conditions are met: (i) a Lead has no existing business contacts with TMS (or its Affiliates) prior to the Referral Partner’s referral; (ii) a Lead has signed an agreement with the appropriate Affiliate; and (iii) a Lead must process at least one live transaction.
A “Lead” means any business contact entered into TMS’ (or one of its Affiliates) internal system(s) and is interested in opening a new merchant account or switching from their current processor to TMS or one of its Affiliates. The business contact must be a US based company or individual, and the business contact information provided must be valid. By using Referral Partner’s customized URL and toll-free number, any Lead which originated from Referral Partner will be automatically attributed to Referral Partner’s account.
Method of Payment
TMS, in its sole discretion, shall make payments to Referral Partner by any method. In order to receive payment, Referral Partner must complete a Referral Partner Program Contact Form.
U.S. Domestic Referral Partners: After reaching total payments of $500 within one calendar year, Referral Partner is required to submit a W-9 tax form. Failure to submit a W-9 tax form will result in the suspension of all payments until the W-9 tax form has been received by TMS.
International: If Referral Partner is a Non-U.S. based entity then before any payments are made by TMS the Referral Partner must submit a Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding Form or W-8BEN. Failure to submit such forms will result in 30% of all payment being withheld.
Revision of Commission Rates
TMS reserves the right to change any compensation structure at any time. TMS will provide Referral Partner with ninety (90) days prior written notice of such change. TMS may provide such notice via the email address associated with Referral Partner’s account information.
TMS tracks referrals by the use of browser cookies. The life span of the cookie is ninety (90) days, which means that if a user returns to our website within 90 days and contacts us, that referral will still be attributed to Referral Partner’s account.
Once a business contact is recorded as a Lead by us, the lead belongs to the referring Referral Partner for three (3) months. If the same business is referred by a second Referral Partner during these three (3) months, this is not considered a valid Lead, and will not show up in any referral statistics. If the business is not approved for a merchant account by TMS during the three (3) months, the business is eligible to become a valid Lead again.
Referral Partner shall not be eligible for a commission on a referral, directly or indirectly, of itself or any entity owned or controlled, in whole or in part, by itself (a "self-referral"). No commissions will be payable to any Referral Partner for a direct or indirect self-referral, or for any referral which TMS determines, in its sole discretion, constitutes a self-referral.
Employees (and their families) of TMS (or any of its Affiliates) who are employed in a sales related role are not eligible to participate in this On-Line Referral Partner program.
Sale of Referrals’ Information
Referral Partners use of Lead referral contact information for any other purposes other than referring their business to TMS is prohibited, including selling a referred Lead’s contact information.
We do not permit SPAM of any kind. This includes, but is not limited to:
Sending unsolicited emails.
Posting to any inappropriate newsgroups that do not allow business content.
Using the “TMS” name in any unsolicited communications.
TMS grants Referral Partner a limited, non-exclusive, non-transferable license, during the term of the Referral Partner’s participation in TMS’s Referral Partner Program, to use text and images owned by TMS and/or its Affiliates (including any trademarks owned or licensed by TMS) for the sole purpose of marketing, advertising and promoting the Referral Partner Program. Referral Partner may not alter or modify any link or banner provided by TMS, or any of TMS or its Affiliate’s images in any way without TMS’s prior written permission. TMS and its Affiliates reserve all of its rights in its trade names, trademarks, and all other intellectual property. The license herein granted to Referral Partner shall automatically and immediately cease upon the termination of Referral Partner’s participation in the Referral Partner Program.
Except for the rights expressly granted herein, this Agreement does not transfer any intellectual property or technology to Referral Partner; and all rights, title and interest in such intellectual property and technology, whether developed, licensed or owned by TMS and its Affiliates shall remain with TMS and its Affiliates. Referral Partner agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets of TMS and its Affiliates.
Image Display on Referral Partner Site
All Referral Partner sites shall display the graphic images provided to Referral Partner prominently throughout the Referral Partner’s site in locations that Referral Partner determine are most suitable. Referral Partner shall not alter, modify or expand the links in any way; however, a Link may be modified and/or expanded with TMS’s prior written consent. Each Link connecting users of Referral Partner’s site to TMS’s site will in no way alter the look, feel, or functionality of TMS’s site. TMS may, in its sole discretion, monitor Referral Partner’s site at any time and from time to time to determine if Referral Partner is in compliance with the terms of this Agreement.
TMS is not responsible for lost Leads including, but not limited to:
Improper or erroneous tracking implementation by Referral Partner, including but not limited to the use of iframes, misspelled Referral Partner URL, or multiple URL re-direction;
Lead visitor has browser set to not accept cookies; and/or
Lead visitor contacts us after the cookie has expired.
Relationship of the Parties
Each party shall be deemed as independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement shall be deemed or construed in any manner as creating any partnership, joint venture, employment, agency, fiduciary, or other similar relationship. Referral Partner will be responsible for all owed taxes on the compensation paid by TMS and will be sent a Form 1099 earnings statement by TMS. Referral Partners are referred to as a Referral Partner in this Agreement only to identify their rights and obligations hereunder and such Referral Partners are not and shall not be a Referral Partner of TMS for any other purpose. Neither party has the authority to bind the other.
Limitation on Liability
TMS shall not be liable to a Referral Partner 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 TMS 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 or interruption in use or availability of data), even if such party has been advised of the possibility of such damages. Further, TMS’s aggregate liability to any Referral Partner arising with respect to this Agreement and under the Referral Partner Program will not exceed the total compensation paid or payable by TMS to such Referral Partner under this Agreement.
Referral Partner shall indemnify and hold TMS harmless from any and all losses, claims, damages, liabilities and expenses, including attorney's fees and costs arising out of (i) the manner that Referral Partner finds Leads and (ii) Referral Partner’s failure to comply with applicable law or this Agreement.
Term and Termination
TMS may terminate this Agreement:
Upon ten (10) days prior written notice if Referral Partner fails to refer any Leads to TMS for a period of ninety (90) days or more;
If Referral Partner fails to generate at least ten (10) Approved Accounts during any continuous twelve (12) month period;
If, in TMS’s sole discretion, Referral Partner is deemed to be in violation of any provision of this Agreement;
Upon the insolvency or dissolution of Referral Partner; or
Upon any change in the ownership or control of Referral Partner.
If this Agreement is terminated, TMS shall have no further obligations for payment of any compensation to Referral Partner under this Agreement.
Compliance With Applicable Law
Each Party shall fully comply with laws, statutes and federal and/or state regulations in the performance of any activities under this Agreement.
Referral Partner shall not have the right to assign this Agreement without the prior written consent of TMS. TMS has the right to assign any right, duty, obligation, or interest in this Agreement whatsoever to any party without the written consent of any Referral Partner. Nothing in this Agreement is intended to confer any rights or remedies on any entity that is not a party to this Agreement.
Modification and Amendment
Except as otherwise provided herein, TMS may modify any of the terms and conditions in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on its site. Modifications may include, but are not limited to, changes in the scope of available commission fees, residual fees, payment procedures, and Referral Partner Program rules. If any modification is unacceptable to a Referral Partner, the Referral Partner’s only recourse is to terminate this Agreement. A Referral Partner’s continued participation in the Referral Partner Program following our posting of a change notice or new agreement will constitute binding acceptance of the change. Referral Partner may not amend or waive any provision of this Agreement unless such amendment or waiver is in writing and signed by TMS.
Referral Partner acknowledges that they have read this Agreement and agree to all of its terms and conditions. Referral Partner understands that TMS may at any time (directly or indirectly) solicit customer referrals from other parties on terms that may differ from those contained in this Agreement. Referral Partner has independently evaluated the desirability of participating in the Referral Partner Program and is not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
Electronic Communications and Governing Law
TMS and Referral Partner desire to facilitate certain transactions pursuant to this Agreement by exchanging documents, records and signatures electronically or by utilizing electronic agents. The use of electronic facilities or agents shall be in accordance with procedures established by TMS and governed by the applicable provisions of the Uniform Electronic Transactions Act as adopted in the State of Nebraska.
This Agreement shall be governed by the laws of the State of Nebraska (without regard to its conflict of law principles). The parties agree that any cause of action or litigation involving the alleged breach or enforcement of this Agreement or any claim arising hereunder shall be filed exclusively in federal or state court in Douglas County, Nebraska, and Referral Partner hereby irrevocably consents to the jurisdiction of any federal or state court in Douglas County, Nebraska.