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Capital Merchant Solutions Affiliate Agreement

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND CAPITAL MERCHANT SOLUTIONS, INC.

BY CLICKING THE "SUBMIT" BUTTON ON THE PAGE FROM WHICH THIS AGREEMENT IS LINKED OR BY SUBMITTING A SIGNED COPY OF THIS AGREEMENT TO CAPITAL MERCHANT SOLUTIONS, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR THE TERMS AND CONDITIONS SET FORTH BELOW. 

This Agreement contains the complete terms and conditions that apply to the participation in the Capital Merchant Solutions, Inc (hereinafter "CMS") Affiliate Program (the "Program"). 

 

A. DEFINITIONS 

As used in this Agreement the following definitions will apply: 

(1) "CMS," "we", "us" or "our" refers to Capital Merchant Solutions, Inc., its contractors, agents, employees, and directors; 

(2) "Applicant", "affiliate", "you" or "your" refers to the individual or company applying to become an affiliate; 

(3) "Program" shall mean the Capital Merchant Solutions Affiliate Program; 

(4) "Site" shall mean a World Wide Web site, and depending on the context, refers either to sites owned or maintained by CMS or to the site that affiliate will link to our site from.

(5)  “Merchant” shall mean each party solicited by affiliate and with which CMS and/or its Bank Partner(s) has executed a service agreement as a result of such solicitation.

(6) “Merchant Services” shall mean the operations relating to the acceptance, processing and collection of transactions on behalf of Merchants by CMS and/or its Bank Partner(s).  Such operations include, but are not limited to credit review and approval of Merchants, clearing and settlement of transactions, customer service, and chargeback and retrieval services. 

(7) “Merchant Account” shall mean a specific and unique numbered account established by CMS and/or it’s Bank Partner(s) for the processing of Merchant’s transactions.

(8) “Bank Partner” shall mean any financial institution or company that CMS works with to assist in the underwriting, risk analysis and security, or otherwise assists CMS in providing services to Merchants. 

 

B. OVERVIEW 

This Agreement contains the complete terms and conditions that apply to you upon becoming an Affiliate. The purpose of this Agreement is to allow you to engage in the business of marketing Merchant Services to business and nonprofit entities. Whereas, CMS provides such services in conjunction with its Bank Partner(s), and whereas, CMS wishes to expand its market share by retaining you to assist in marketing its services. 

 

C. ENROLLMENT 

To begin the enrollment process, you must submit a complete Affiliate Application via our site or in writing. We will give careful consideration to your application and will send you an email with our decision. We reserve the right to reject or deny your application if we feel, in our sole discretion, that you are unsuitable for the program.

 

D. REFERRAL PROCESS 

You will be given instructions on how to refer potential Merchants (“leads”) to CMS in a way that automatically identifies and gives you credit for every sale that originates from you.  CMS will provide you with links and banners to use in linking to our site.  When leads click on the link they will be taken to our site, and then asked to begin the signup process.  Alternatively, you may submit leads by asking them to contact us directly, and giving us your name or assigned partner ID number.  When leads call into our office CMS makes every reasonable effort to determine where they originated from. 

 

E. OBLIGATIONS OF AFFILIATE 

As an affiliate for CMS you agree to comply with CMS and Partner Banks’ policies and procedures, including, but not limited to:

(1) Affiliate shall market Merchant Services only to businesses and organizations it knows to be legitimate and lawful, and affiliate will promptly disclose to CMS any adverse information it receives relating to a Merchant. 

(2) Affiliate shall use only those marketing and promotional materials that have been provided by CMS for the purposes of soliciting CMS’ Merchant Services. 

(3) Affiliate shall not use inappropriate Internet marketing techniques. Such techniques include but are not limited to sending unsolicited email, inappropriately posting in newsgroups or discussion forums and participating in any other form of spam.

(4) Affiliate shall not link to CMS’ site from any site that may contain or promote violence, discrimination, illegal activities, or violates intellectual property rights.  

(5) For the term of this Agreement, affiliate shall not enter into any contract, whether written or oral, with any other sales organization, marketing firm, or independent contractor for the purposes of soliciting CMS’ Merchant Services on behalf of affiliate. 

(6) Affiliate acknowledges and agrees that all funds paid to or by Merchants in connection with the Merchant Services shall be under the sole control of CMS and/or its Partner Bank(s). 

(7) Affiliate agrees to comply with all rules, policies, and procedures set forth by Visa, MasterCard, Bank Partners, or any other regulatory agency having jurisdiction related to Merchant Services.  Any fines passed down to CMS by Card Associations or Bank Partners as a result of non-compliance by Affiliate will be the responsibility of Affiliate.  

If CMS reasonably believes that affiliate is not performing its obligations under this Agreement in any respect, CMS may in its sole discretion, remove you from the program without prior notice. Removal from the program will result in immediate termination of this Affiliate Agreement and all current and future commissions or residuals due. 

 

F. COMMISSIONS 

(1) $100 commission Per Referral. If you elected to receive the $100 referral commission per account, then we will pay you a ONE HUNDRED DOLLAR ($100) commission for every referral which has been approved for and entered into a merchant processing agreement with CMS using our current published pricing and standard contractual terms. A FIFTY DOLLAR ($50) commission will be paid for merchants with non-standard pricing or contract terms. Notwithstanding the foregoing, if a customer cancels their merchant account with us within 30 days of being setup and you have been paid a commission on their account, you agree to immediately pay back the commission earned on such account. Such commission can be paid back through us withholding future commission payments on other accounts. 

(2) 20% Residual Plan. If you elected to receive the 20% ongoing monthly residual commissions then a monthly residual commission equal to TWENTY PERCENT (20%) of revenue will be paid to you for any Merchant obtained by CMS through your performance under this Agreement. Residuals shall be paid monthly for a period of time during which the Merchant continues to generate revenue to CMS. As used herein, revenue shall mean actual income received from Partner Banks derived from use of merchant services by a merchant.  

Residual commissions shall be calculated monthly from reports furnished to CMS by Bank Partner(s) and shall be paid to affiliate when the monthly residual volume is equal to or greater than $100.00. Notwithstanding the foregoing, if any residuals on an account are required to be paid back to Bank Partner(s) for any reason, you agree to immediately pay back the residuals earned on such account. Such residuals may be paid back through us withholding future residual payments on other accounts or at our request be paid back immediately if no other processing business is present under the affiliate’s account.

 

G. FEES 

During any period of time in which this Agreement remains in full force and effect, compensation to Affiliate will be paid as set forth in section F. The compensation plan set forth in section F shall be held in strict confidence by Affiliate. CMS may only amend section F to reflect any increases or decreases in the direct costs that it is charged by its Bank Partners, Visa, MasterCard, Member Service Providers and other similar entities. Affiliate authorizes CMS to deposit funds directly into Affiliate’s authorized bank deposit account, and CMS will automatically deduct all amounts for Affiliate’s obligations under this Agreement.  Compensation will be paid to Affiliate in a timely manner assuming that CMS receives timely reporting and payment from its Partner Bank(s).  If payment is not received from Partner Bank(s), then Compensation will not be due to affiliate.  Actual income received from Partner Bank(s) shall be basis for computing residual compensation.  Affiliate shall have 60 days from the receipt of any compensation or residuals to notify CMS of any errors in payment of compensation or residuals. If Affiliate does not notify CMS within the 60 day time period, Affiliate shall be deemed to have accepted without question such residual or compensation payment and may not in the future contest the amount it was paid or seek reimbursement for any discrepancies. Upon receipt of notice, CMS shall have 60 days to correct any errors. 

 

H. SELF REFERRALS 

Unless otherwise agreed upon in writing, you are not allowed to receive any commission or residual payments by referring yourself or by referring yourself through another affiliate. We reserve the right not to pay out any commissions or residuals on any referral in which we suspect this has occurred. 

 

I. TAX ID / W-9 FORM 

For U.S. based affiliates, you agree to provide us with a valid Tax ID and W-9 form once your commissions and/or residuals reach $600 or more in any calendar year, otherwise you will forfeit any future earned commissions or residuals. 

 

J. LIMITED LICENSE 

We grant you a limited, non-exclusive, non-transferable license, during the term of this Agreement, to use text and images, owned by CMS for the sole purpose of marketing, advertising and promoting CMS’ Merchant Services. You may not alter or modify the link or banner, or any of our images in any way without prior permission. We reserve all of our rights in the icon, the message, any other images, our trade names and trademarks, and all other intellectual property rights. The license herein granted shall automatically and immediately cease upon the termination of this Agreement. 

 

K. TERM & TERMINATION 

The period during which this Agreement will be in effect begins upon our acceptance of you as an Affiliate Application and will end when terminated by either party. 

(1) Default. Either party shall have the right to terminate this Agreement at any time if: 

(a) the other party breaches any of the provisions 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; (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. 

(2) Termination by CMS. CMS may cancel this Agreement for any reason, or no reason at all, by providing Affiliate with thirty (30) days notice.  

 

L. TERMINATION OF COMPENSATION 

If this Agreement is terminated by CMS under section K.1 or Affiliate breaches this Agreement or any of the representations or warranties herein, CMS shall have no further obligations for payment of any compensation to Affiliate under this Agreement. 

 

M. COMPENSATION TO AFFILIATE FOLLOWING TERMINATION 

Unless this Agreement is terminated for the reasons as set forth in sections K or L, CMS agrees to make payments to Affiliate as set forth in this Agreement for any Merchant obtained by CMS through Affiliate's performance of this Agreement for any period of time during which such Merchant continues to generate revenue to CMS. CMS shall have no further obligation to make any payments to Affiliate under this Agreement once Affiliate’s monthly payment falls below twenty five dollars ($25.00). 

 

N. LIMITATION OF LIABILITY 

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY 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 CMS’ 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 SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

 

O. DISCLAIMER OF ALL WARRANTIES 

CMS SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. CMS DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO AFFILIATE 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 CMS OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF CMS OBLIGATIONS. 

 

P. ARBITRATION 

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 McLean County, Illinois, and will apply the governing law of this Agreement. The final and binding arbitration will be performed in accordance with and subject to the Commercial Arbitration Rules of the AAA then in effect. Following notice of a party’s election to require arbitration, each party will, within 30 days, select one arbitrator; and those two arbitrators will, within 30 days thereafter, select a third arbitrator. If the two arbitrators are unable to agree on a third arbitrator within 30 days, the AAA will, within 30 days thereafter, select the third arbitrator. The decision of the arbitrators will be final and binding, and judgment on the award may be entered in any court of competent jurisdiction. The arbitrators 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. 

 

Q. 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 

 

R. GENERAL TERMS 

(1) Modification. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, but not limited to, changes in the scope of available commission fees, residual fees, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE. 

(2) Governing Law. This final Agreement shall be governed by and construed and enforced in accordance with the substantive laws of the State of Illinois. Any action relating to this Agreement must be brought in the federal or state courts located in Illinois. You irrevocably consent to the jurisdiction of these courts. The construction and interpretation of this Agreement shall not be strictly construed against the drafter. 

(3) Assignment. You may not assign this Agreement, by operation of law or otherwise, without the prior written consent of CMS. Nothing in this Agreement is intended to confer any rights or remedies on any entity that is not a party to this Agreement. 

(4) Waiver. No failure to enforce any provision, assert any right or insist on performance of any provision under this Agreement in any instance shall be deemed a waiver of the ability to enforce such provision, assert such right, or insist on the performance of such obligations in the future. Our failure to enforce your strict performance will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. 

(5) Relationship of the Parties. The parties of this Agreement are independent contractors. Nothing in this Agreement shall be construed to create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Neither party has the authority to bind the other or incur any obligation on behalf of the other. You will not make any statements, whether on your site or otherwise, that runs contrary to this relationship. 

(6) Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. 

(7) Confidentiality. The information and service provided by CMS to its customers is proprietary in nature. Affiliate hereby acknowledges that it is not a competitor of CMS and agrees not to share any proprietary information with any competitors of CMS. With respect to information received by either party as a result of this Agreement, the parties will agree that the terms and conditions of this Agreement are confidential. 

(8) Force Majeure. Neither party hereto shall be in default hereunder by reason of its delay in the performance or failure to perform any of its obligations hereunder for any event, circumstance, or cause beyond its control such as, but not limited to, acts of God, strikes, lock-outs, general revolution, riots, epidemics, power shortages, fire, earthquake or flood. The party affected by any such event shall notify the other party within a maximum period of fifteen (15) days from its occurrence. The performance of this Agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under the Agreement. 

(9) Severability. The provisions of this Agreement are severable, and in the event that any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof.