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First Name: Last Name: Title: Website Address: Email: Business Name: Business Address: City: State: Zip: Business Phone: Business Fax: Which shopping carts, software or technology do you offer your clients? Where did you learn about our VAR program? (optional) I would like to resell: Gold Account Blue Accounts Both Gold and Blue Accounts   AuctionCheckout Value Added Reseller Terms and Conditions: Please read the license agreement below and select the checkbox if you agree with our terms and conditions. VALUE ADDED RESELLER AGREEMENT WITH MASTER VAR REFERRAL AGREEMENT This AGREEMENT is made by and between Value Added Reseller (“VAR”) and Merchant Focus Inc.,(DBA Auction Checkout) an Ohio Corporation having a place of business at 5940 Venture Drive Unit C Dublin, OH 43017 (“MFOCUS”). WHEREAS, MFOCUS is engaged in the business of marketing electronic transaction processing services, and WHEREAS, MFOCUS wishes to contract with VAR to provide merchant referral services, and WHEREAS, VAR wishes to provide MFOCUS with merchant referral services. NOW THEREFORE, in consideration of the mutual promises contained herein, IT IS AGREED as follows: 1. ENGAGEMENT AND OBLIGATIONS OF VAR. VAR agrees to solicit merchant referrals from its existing and future account base, to subscribe to the services provided by MFOCUS upon the terms and conditions set forth herein. 1.1 VAR will list MFOCUS on its preferred vendor list to all registered end users as a provider of bankcard services. 1.2 VAR will include in its mailings to all of its customers material provided by MFOCUS, relating to services provided by MFOCUS. 1.3 Except as otherwise provided herein or in the written policies and procedures of MFOCUS, VAR may refer any eligible merchant, who does not have an existing contract for bankcard processing services with MFOCUS, and is an existing or future customer of VAR. VAR agrees that once a merchant has been identified as having an existing contract with MFOCUS, all solicitation efforts to obtain a referral shall immediately be discontinued. 1.4 In soliciting merchant referrals, VAR shall use only materials supplied by or approved by MFOCUS, including but not limited to electronic mail and web site marketing, business cards, letterhead and promotional, advertising or recruiting materials, and shall offer only terms and conditions authorized by MFOCUS. All procedures and marketing activities used to solicit merchant referrals shall be approved by the Chief Executive Officer or some other authorized Officer of MFOCUS. Such approval shall be presumed unless VAR is notified in writing of non-approval within ten (10) business days after receipt by MFOCUS of the proposed materials. 1.5 The parties recognize that MFOCUS has retained VAR’s services for VAR’s unique marketing and referral capabilities. As such, VAR shall not delegate any of its duties under this Agreement to any other person, entity, or subcontractor without the express written authorization of MFOCUS. 1.6 VAR agrees to comply with all policies and procedures of MFOCUS relating to the solicitation of merchant referrals. MFOCUS agrees to provide such policies and procedures in writing to VAR and to give VAR prompt written notice of changes thereto. 1.7 VAR shall be responsible for obtaining and providing to MFOCUS merchant contact information to be considered a qualified referral (the “Merchant File”). VAR may also refer prospective merchants to an online application specifically assigned to VAR by MFOCUS. VAR agrees that all proposed merchant referrals are subject to acceptance and approval by MFOCUS and the acquiring financial institution(s) ("Bank(s)") and that no Merchant Contract submitted as a result of a referral shall be final and binding unless accepted by MFOCUS and the Bank(s). VAR shall not accept any funds from any merchant referred to MFOCUS. Acceptance of a Merchant Contract shall be presumed unless VAR is notified in writing of such non-acceptance within twenty (20) days after receipt of the completed Merchant File. As used herein, a Merchant Contract shall be a contract approved by MFOCUS and entered into by and between MFOCUS and a merchant wherein MFOCUS provides electronic transaction processing services. 1.8 VAR agrees to indemnify and hold harmless MFOCUS, its officers, directors, employees, successors and assigns from any and all liabilities, including but not limited to, claims, demands, actions, suits, costs, damages, settlements, fees, including attorneys fees, and obligations of any kind, type and description whatsoever, brought or imposed upon MFOCUS, its officers, directors, employees, successors or assigns, jointly or severally relating to or arising out of any fraud, misrepresentation or wrongdoing by VAR in connection with the performance of this Agreement. This indemnity survives any termination of this Agreement. 1.9 VAR shall not submit to MFOCUS any merchant referral that contains information known by VAR to be false or misleading, nor any merchant referral known by VAR to be ineligible for a Merchant Contract under the written policies and procedures of MFOCUS. 1.10 VAR shall abide by all Rules (“Rules”) of the Card Association(s) (Visa U.S.A., Inc., Visa International, Inc., MasterCard International Inc. or any other card issuer that provides cards accepted by merchants under the Merchant Processing Agreement)(“Card Association(s)”). Violation of the Rules shall constitute cause for termination of this Agreement. VAR shall indemnify and hold harmless MFOCUS and Bank(s) from any fine or penalty imposed by any Card Association(s) by reason of a violation of the Rules by VAR. Such Rules are available upon request from the Card Association(s). 1.11 In the event that this Agreement is terminated by MFOCUS at any time within the first ninety (90) days after the date hereof with or without cause, MFOCUS shall have no obligation to pay any further compensation to VAR, and, anything in this Agreement to the contrary notwithstanding, VAR shall have the right to solicit those merchants whose contracts with MFOCUS were obtained by VAR to terminate such contracts and VAR shall have no liability to MFOCUS by reason of such solicitation and termination, provided, however, that such waiver of liability shall not apply if such solicitation includes any false or defamatory statements concerning MFOCUS, or any employees, officers, or directors thereof. 2. CONFIDENTIALITY. VAR agrees that it or any of its employees or affiliates, will not voluntarily divulge or disclose and will hold in confidence any and all proprietary information with respect to MFOCUS's business, including but not limited to reports, merchant lists, operating procedures, compensation reports or schedules, pricing models, product information, price lists, rate structure, software design, training and sales support materials of which VAR acquires knowledge during the term of this Agreement, whether in written or oral form, whether or not designated as “Confidential”, “Proprietary” or some similar designation. (the "Information"). The Information may also include information disclosed to VAR by third parties. The Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the execution of this Agreement; (ii) becomes publicly known and made generally available after the execution of this Agreement through no action or inaction of MFOCUS; (iii) is already legally in the possession of VAR at the time of the execution of this Agreement, as shown by VAR’s files and records immediately prior to the time of execution; (iv) is obtained by VAR from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by VAR without use of or reference to MFOCUS’s Information. Without MFOCUS's prior written consent, VAR agrees not to use the Information for any purpose other than the performance of the services to be performed under this Agreement. The provisions of this paragraph shall survive the termination of this Agreement. 3. OTHER AGREEMENTS. VAR warrants and represents to MFOCUS that the referral by VAR of any other VAR or merchant referrals to enter into merchant contracts with MFOCUS and the execution of such contracts is not prohibited by or in breach or violation of any agreement to which VAR is a party and is not in breach of any obligation or duty owed to any other person or entity. VAR shall indemnify and hold harmless MFOCUS, its officers, directors, employees, agents, successors and assigns from any and all liabilities, including but not limited to, claims, demands, actions, suits, costs, damages, settlement, fees, including attorney's fees, and obligations of any kind, type and description whatsoever, brought or imposed upon MFOCUS, its officers, directors, employees, agents, successors and assigns, jointly or severally, relating to or arising out of the solicitation of any merchant referral in breach or violation of any agreement to which VAR is a party. 4. NON-SOLICITATION. In consideration for the compensation to VAR provided for herein, without the prior written consent of MFOCUS, VAR shall not directly or indirectly, whether or not for compensation, engage in any business activity (whether as an employee, proprietor, officer, director, agent, trustee, partner or creditor lending money for the purpose of establishing or operating any such business) that (a) induces or attempts to induce, directly or indirectly, any merchant to modify or terminate such merchant's business relationship with MFOCUS or (b) interferes with, disrupts or attempts to disrupt any present business relationship, contractual or otherwise, between MFOCUS and any merchant, client, supplier, consultant, agent or employee of MFOCUS. The provisions of this paragraph shall survive the termination of this Agreement. 5. REMEDIES. The parties acknowledge that any disclosure of the Information or breach of the provisions of this Agreement will cause immediate, irreparable and continuing damage to MFOCUS for which there is no adequate remedy at law. Consequently, the parties acknowledge and agree that in the event of any breach or violation or threatened breach or violation of this Agreement, MFOCUS and its successors and assigns shall be entitled to to an injunction prohibiting any such breach, or to specific performance or any other other legal and equitable remedies as may be provided by applicable law (without the necessity of posting any bond or other security), including damages, costs of suit and attorney's fees. 6. COMPENSATION. As used herein, “Gold Merchant Contracts” shall refer to those Merchant Contracts in which MFOCUS provides the merchant with a merchant account, along with the technology for the electronic processing of bank card transactions and “Blue Merchant Contracts” shall refer to those Merchant Contracts in which MFOCUS provides the merchant with the technology for the electronic processing of bank card transactions only. In consideration of the services performed by VAR under this Agreement, MFOCUS agrees to compensate VAR as follows: 6.1 (a) GOLD MERCHANT CONTRACTS: A Referral Commission equal to TWENTY PERCENT (20%) of Revenue generated by the approved Gold Merchant Contracts entered into by and between MFOCUS and merchant referrals generated and referred to MFOCUS by VAR; a flat Monthly Referral Fee of SIX DOLLARS ($6.00) per approved Gold Merchant Contract entered into by and between MFOCUS and a merchant referral generated and referred to MFOCUS by VAR; and a One Time Referral Fee of THIRTY DOLLARS ($30.00) per approved Gold Merchant Contract entered into by and between MFOCUS and a merchant referral generated and referred to MFOCUS by VAR. As used herein, “Revenue” shall mean the fees actually collected by MFOCUS from merchants for all processing, less the costs of interchange, dues and assessments, chargeback’s, bank fees and service provider fees, security fees, and reserve fees. Referral Commissions, Monthly Referral Fees, and One Time Referral Fees shall be calculated monthly from reports furnished to MFOCUS by Bank(s) and shall be paid to VAR no later than the 30th day of the month following such reports furnished by Bank(s). All payments to VAR shall be accompanied by a compensation report showing the volume, average ticket, and Referral Commissions, Monthly Referral Fees, and One Time Referral Fees generated by each Gold Merchant Contract. Referral Commissions, Monthly Referral Fees, and One Time Referral Fees shall be paid during the term of this Agreement only for Gold Merchant Contracts that are approved by MFOCUS as a result of merchant referrals generated by VAR or referrals who are customers of VAR; 6.1 (b) BLUE MERCHANT CONTRACTS: A flat Monthly Referral Fee of FIVE DOLLARS ($5.00) per approved Blue Merchant Contract entered into by and between MFOCUS and a merchant referral generated and referred to MFOCUS by VAR; and a One Time Referral Fee of TWENTY DOLLARS ($20.00) per approved Blue Merchant Contract entered into by and between MFOCUS and a merchant referral generated and referred to MFOCUS by VAR. As used herein, “Transaction Fee Revenue” shall mean the fees actually collected by MFOCUS from merchants for all processing, less the costs of interchange, dues and assessments, chargeback’s, bank fees and service provider fees, security fees and reserve fees. From time to time, merchants under Blue Merchant Contracts may set up additional accounts under such existing contracts, and, in such circumstances, no One Time Referral Fee shall be payable to VAR under this Agreement. Referral Commissions, Monthly Referral Fees, and One Time Referral Fees shall be calculated monthly from reports furnished to MFOCUS by Bank(s) and shall be paid to VAR no later than the 30th day of the month following such reports furnished by Bank(s). All payments to VAR shall be accompanied by a compensation report showing the volume, average ticket, and Referral Commissions, Monthly Referral Fees, and One Time Referral Fees generated by each Blue Merchant Contract. Referral Commissions, Monthly Referral Fees, and One Time Referral Fees shall be paid during the term of this Agreement only for Blue Merchant Contracts that are approved by MFOCUS as a result of merchant referrals generated by VAR or referrals who are customers of VAR. 6.2 MFOCUS reserves the right in its sole and exclusive discretion to change its fee schedule, equipment prices, processing methods and to terminate Merchant Contracts pursuant to their terms, with advance notice to VAR. 6.3 Referred Merchant Contracts considered high risk within the sole and exclusive discretion of MFOCUS will not be accepted, and no referral fees will be paid for such referrals. 7. MASTER VAR REFERRAL OPPORTUNITY and MASTER VAR REFERRAL COMPENSATION 7.1 MFOCUS provides compensation to reward Master Value Added Reseller(s) (“MVAR(s)”) for referring to MFOCUS other direct VARs. Such MVARs must utilize the MASTER VAR PORTAL and/or notify MFOCUS in writing of VARs it has referred to MFOCUS. MFOCUS agrees to pay to MVAR for referral services performed under this Agreement as follows: 7.2 A Referral Fee equal to FIFTY PERCENT (50%) of the Referral Commissions, Monthly Referral Fees, and One Time Referral Fees paid to VARs under Value Added Reseller Agreements by and between MFOCUS and VARs which are referred to MFOCUS by MVAR. Referral fees shall be calculated monthly and shall be paid to MVAR no later than the 30th of each month, commencing on the 30th of the month following the date hereof. 7.3 MFOCUS reserves the right in its sole and exclusive discretion to change its merchant fee schedule, equipment prices, processing methods and to terminate merchant, VAR and MVAR contracts pursuant to their terms. 8. TERM AND TERMINATION. The Term of this Agreement shall be for three (3) years and shall automatically renew upon the expiration of each initial and renewal Term, unless written notice of intent not to renew is given by either party not less than 30 days prior to the end of the applicable Term. This Agreement may be terminated by either party with or without cause, by giving thirty (30) days written notice. 8.1 In addition to any other provisions specified herein, MFOCUS shall have the right in its sole and exclusive discretion to terminate this Agreement for cause in any of the following circumstances: (a) breach by VAR of any of the terms and provisions of this Agreement, (b) any VAR act of fraud or dishonesty in connection with the performance of duties under this Agreement, (c) VAR conduct contrary to the best interests of MFOCUS, (d) execution of an assignment for the benefit of VAR creditors, or (e) bankruptcy, receivership, or dissolution of VAR. Upon termination for cause MFOCUS shall have no further obligation to pay any compensation provided for herein. 8.2 In the event that VAR voluntarily terminates this Agreement at any time, MFOCUS shall pay VAR all compensation due hereunder to the date written notice of termination is given. 8.3 Upon termination of this Agreement by either party, with or without cause, VAR shall promptly return to MFOCUS all Information, equipment, sales literature and all documents and materials supplied by MFOCUS. MFOCUS shall have no obligation to pay any compensation to VAR until it has received all Information, equipment, sales literature and all documents and materials supplied by MFOCUS. 9. GOVERNING LAW. This Agreement will be governed by and construed under, and the legal relations between the Parties hereto will be determined in accordance with, the laws of the State of Ohio, without regard to choice of law rules. The parties hereby consent to the exclusive jurisdiction and venue of the courts of Franklin County, Ohio, or to Federal Court for the Southern District of Ohio. 10. NOTICES. All payments, notices, requests, demands and other communications required or permitted to be given under this Agreement shall be given in writing by United States mail, postage prepaid, to the parties at the address set forth below and in Appendix “A,” affixed to and incorporated in this Agreement by reference, or to such other place or places as either party hereto shall designate by written notice to the other. Such notice shall be effective as of the date of mailing. MFOCUS Merchant FocusINC. 5940 Venture Drive Unit C Dublin, OH 43017 VAR See Appendix “A” 11. ENTIRE AGREEMENT. This Agreement, together with any supplements, addenda, appendices, amendments, modifications or attachments, comprises the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings. Each party acknowledges that no representations, inducements, promises, warranties, or agreements have been made by any party, or anyone acting on behalf of any party, other than those set forth in this Agreement. 12. SEVERABILITY. In the event that any portion of this Agreement is found to be void, illegal or unenforceable, the validity and enforceability of any other portion shall not be affected. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 13. AMENDMENTS AND WAIVERS. This Agreement may be modified, amended or supplemented only by a written instrument duly executed by the parties hereto. No covenant, term or condition, or the breach thereof, shall be deemed waived, unless it is waived in writing and signed by the party against whom the waiver is claimed. The waiver by either party of a breach of any covenant, term or condition shall not operate or be construed to be a waiver of any preceding or subsequent breach thereof. 14. ARBITRATION. Any dispute concerning the parties’ duties under this Agreement which the parties cannot resolve within sixty (60) days after such termination shall be directed to binding arbitration administered by, and pursuant to the rules of, the American Arbitration Association (“AAA”) in the County of Franklin, in the State of Ohio, with all expenses being shared equally by the parties. Judgment upon any AAA award may be entered in any court having jurisdiction. Any costs incurred in the enforcement of the arbitration award shall be paid by the party against whom enforcement is sought and the prevailing party from arbitration shall be entitled to reasonable attorney‚s fees, which shall be set forth by the arbitrator(s). Should either party file an action contrary to this provision, the other party may recover attorneys‚ fees and costs up to one thousand dollars ($1000.00). 15. LIMITATION OF LIABILITY. EXCEPT AS STATED IN THE FOLLOWING SENTENCE, THE PARTIES HERETO SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES. EACH PARTY SHALL BE LIABLE FOR AND AGREES TO INDEMNIFY AND HOLD THE OTHER HARMLESS FROM ANY AND ALL LIABILITY, EXPENSES (INCLUDING REASONABLE ATTORNEY‚S FEES), COSTS, DAMAGES, SETTLEMENTS, OR OBLIGATIONS RESULTING FROM THE RECKLESS OR WILLFUL MISCONDUCT OF EITHER PARTY OR THAT OF ITS EMPLOYEES OR AGENTS OR FOR ITS OBLIGATIONS UNDER OR BREACH OF THE CONFIDENTIALITY OR INDEMNIFICATION CLAUSES HEREIN. NO ACTION ARISING OUT OF THE PERFORMANCE UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN TWO YEARS AFTER SUCH CAUSE OF ACTION OCCURS, EXCEPT THAT AN ACTION FOR NONPAYMENT MUST BE BROUGHT WITHIN ONE YEAR OF THE DUE DATE OF THE LAST PAYMENT. 16. WARRANTY. VAR shall not extend to customers warranties or guarantees in the name of MFOCUS or which would bind MFOCUS with respect to the performance, design, quality, merchantability, non-infringement, or fitness for a particular purpose of the services to be provided under any Merchant Contract pursuant to this Agreement. 17. SURVIVAL. The terms of this Agreement apply to those obligations that survive any cancellation, termination, or rescission, namely ownership, confidentiality/non-disclosure, warranty, indemnification, liability and limits thereon, rights and obligations upon and following termination and assignment. 18. FORCE MAJEURE. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, strikes, unavailability of material, telecommunications failure, any failure of a third party to supply goods or services associated with or comprising a a component provided for in this Agreement, shortages of or failure to deliver hardware and/or software not attributable to an act or failure to act of the party seeking the protection of the Force Majeure, or any other cause beyond the reasonable control of such party ("Force Majeure"), provided that such party gives the other party written notice thereof promptly, and, in any event, within fifteen (15) days of discovery of such Force Majeure. In the event of such a Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of sixty (60) days. 19. RELATIONSHIP OF PARTIES. Nothing contained in this Agreement shall be construed as creating any agency, legal representative, partnership, or other form of joint enterprise between the parties. Neither party shall have authority to contract for or bind the other in any manner whatsoever except as otherwise provided herein. 20. REMEDIES CUMULATIVE. Except to the extent specifically provided otherwise in this Agreement, all remedies provided for hereunder, including, without limitation, the right to terminate this Agreement and all of the remedies provided by law, shall be deemed cumulative and non-exclusive. IN WITNESS WHEREOF, the parties hereto shall be considered to have executed this Agreement as of the date stamp at the time of online acceptance of the Terms and Conditions contained herein. I, , have read and agree to the above AuctionCheckout Value Added Reseller Agreement Terms and Conditions.