Cybersource Referral Agreement

The Cybersource Referral Agreement (the “Agreement”) is a legally binding contract between you and/or your organization (“Company”) and Cybersource Corporation (“Cybersource”). The Agreement sets out the terms and conditions under which Company may refer merchants to Cybersource. Company should read the Agreement carefully.

By clicking on the “I AGREE” button or a similar affirmation, or by acknowledging acceptance of the Agreement by any other method allowed by Cybersource, or by using or accessing Cybersource through any means permissible including, without limitation via a computer or a mobile application, Company acknowledges and agrees that: (i) it has reviewed and understands the Agreement; (ii) it agrees to be legally bound by the terms and conditions of the Agreement; and (iii) the person entering this Agreement is authorized to do so. If Company does not agree or is not willing to be bound by the terms and conditions of this Agreement, Company should not click on the “I AGREE” button.

ARTICLE I: SCOPE OF AGREEMENT

Section 1.1 Scope of Agreement

Subject to the terms and conditions of this Agreement, Company desires to refer merchants to Cybersource for the purpose of Cybersource providing certain products and services to such merchants and Cybersource desires to receive such referrals and to compensate Company for such referrals.

ARTICLE II: DEFINITIONS

Section 2.1 Certain Definitions.

For purposes of this Agreement, the following capitalized terms will have the following meanings:

“Affiliate” means any entity that controls, is controlled by, or is under common control with a party, including its parents and subsidiaries.
“API” shall mean application programming interface.
“Confidential Information” shall mean any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, inventions, processes, plans, financial information, customer data, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not be deemed to include information if: (i) it was already known to the receiving party prior to disclosure to receiving party by disclosing party or the date of this Agreement, whichever is earlier, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or, (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party.
“Customer” shall mean a legal entity that is referred to Cybersource by Company as a Qualified Referral, and that, as a result of such referral, is approved by Cybersource to use certain Cybersource Services and enters into a legally binding agreement with Cybersource for the purpose of said entity obtaining such Cybersource Services.
“Customer Agreement” shall mean a written agreement entered into by each Customer and Cybersource which governs the provision of Cybersource Services to such Customer.
“Cybersource Services” shall mean generally, the Cybersource hosted, online payment and fraud services, set forth in more detail in the Services Documentation.
“Effective Date” shall mean the date Company acknowledges and agrees to the Agreement terms and conditions by clicking the “I AGREE” button associated with the Agreement.
“Feedback” shall mean any and all ideas, requests, feedback, software, technology, information, reports, suggestions, comments, or recommendations, whether in writing, orally, by demonstration, or otherwise, made by Company or its Affiliates to Cybersource.
“Go Live Date” shall mean the date the Customer’s account is turned on in the Cybersource production environment.
“Qualified Referral” shall mean a referral made by Company to Cybersource subject to the following conditions: (i) Company submits a complete and accurate Referral Form; (ii) the referred entity is not an existing customer of Cybersource as of the date such referral is made; (iii) Cybersource or has not been engaged in active discussions with such referred entity during the six (6) month period immediately preceding the date of submission of such referral, as supported by documentary evidence and; (iv) the referred entity has not been previously referred by a third party and, thus, considered a referral by another entity.
“Referral Form” shall mean the online form provided by Cybersource to be completed by Company to submit referrals.
“Services Documentation” shall mean collectively, the operating instructions, user manuals, and help files, support and technical documents, and other documentation, including implementation overviews, integration guidelines, and sandbox guidelines, marketing materials in written or electronic form, as modified by Cybersource from time to time, made available to Company, including by download at https://www.cybersource.com/en-us/support.html,and intended for use in connection with the Cybersource Services and incorporated into this Agreement by reference.

ARTICLE III: COMPANY REQUIREMENTS

Section 3.1 Company Requirements

During the term of this Agreement, Company will exercise commercially reasonable efforts to promote and solicit referrals for Cybersource Services. For each referral, Company shall submit a completed Referral Form via the designated link provided by Cybersource.
Company shall not induce or attempt to induce any Cybersource customer to terminate such customer's relationship with Cybersource.
Company has not and will not in connection with this Agreement or in connection with any other business transactions involving Cybersource make any payment or transfer anything of value: (i) directly or indirectly to any government official or employee (including employees of a government corporation or public international organization) or to any political party or candidate for public office; (ii) which has the purpose or effect of (a) public or commercial bribery; (b) acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business; or (c) otherwise obtaining an improper advantage for Cybersource.
In connection with this Agreement, Company does and will comply with all applicable laws.

ARTICLE IV: CYBERSOURCE OBLIGATIONS

Section 4.1 Cybersource Obligations

Cybersource shall exercise commercially reasonable efforts to acknowledge receipt of referrals made by Company and advise Company as to whether the referral constitutes a Qualified Referral, which determination shall be made by Cybersource exercising good faith, reasonableness, and fairness. For the avoidance of doubt, whether a Qualified Referral is converted to a Customer shall be at the sole and reasonable discretion of Cybersource.
Cybersource shall exercise commercially reasonable efforts respond to Company inquiries on status of referral leads within 3-5 business days.
In connection with this Agreement, Cybersource does and will comply with all applicable laws.

ARTICLE V: COMPENSATION FOR REFERRALS

Section 5.1 Compensation for Referrals

Subject to the conditions set forth in this Agreement, for each Qualified Referral that is converted to a Customer, Cybersource shall remit payment to Company, such payment to be hereinafter referred to as “Commission”.

Requirements for conversion, the amount of Commission to be paid for each Customer, and the method of calculation for Commission, are set forth in Schedule A, the “Commission Matrix”, attached hereto and incorporated into this Agreement by reference.
Commission shall be payable on or before the last day of the month immediately following the month in which Cybersource receives the fees from Customer to which such Commission applies.
Commissions shall be paid on a per-Customer basis to Company for a period of up to thirty-six (36) months from the individual Customer Go Live date, provided the requirements set forth in here and in Commission Matrix are fulfilled.
The Commissions payable hereunder are in (USD) US Dollars or the currency mutually agreed by the parties.
To receive payment from Cybersource, Company must provide banking details, completed W9 and completed Visa Supplier Registration Form to their Cybersource relationship manager. If Company’s banking details change or if there are any changes to their W9, Company shall promptly provide Cybersource with updated details by the 15^th day of the month, otherwise fees will be held until the account can be updated for the following payment cycle. If bank account details are not updated within 6 months, Cybersource reserves the right to void the payment. Cybersource will issue payment once the commissions payment amount reaches $250 or more. Commission amounts will accrue each month until the payment amount reaches the $250 threshold. Company is paid on the net profit of their Customer, once the applicable fees are invoiced to the Customer. If Customer is issued a credit, that will be deducted from the Company’s commission amount.

ARTICLE VI: TERM AND TERMINATION

Section 6.1 Term.

The Agreement shall commence on the Effective Date and remain in full force and effect unless terminated by either party at any time by the other party upon thirty (30) calendar days prior written notice thereof.

Section 6.2 Effect of Termination.

Upon termination of this Agreement for any reason, Cybersource shall have no obligation to pay any further Commissions to Company.

ARTICLE VII: CONFIDENTIAL INFORMATION

Section 7.1 Confidential Information

Each Party (the “Receiving Party”) hereby agrees (i) to hold the other party’s (the “Disclosing Party”) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, (iv) not to remove or export from the United States or re-export any such Confidential Information or any direct product thereof, except in compliance with, and with all licenses and approvals required under applicable U.S. and foreign export laws and regulations, including, without limitation, those of the U.S. Department of Commerce, (v) not to copy or reverse engineer any such Confidential Information, and (vi) that any employee given access to any such Confidential Information must have a legitimate “need to know” and shall be similarly bound in writing.

Section 7.2 Permissible Disclosure

Notwithstanding any provision in this Agreement to the contrary, each party may disclose Confidential Information of the other party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information shall be given reasonable notice of the pendency of such an order or requirement and the opportunity to contest it.

ARTICLE VIII: LIMITATION OF LIABILITY

Section 8.1 Limitation of Liability

UNDER NO CIRCUMSTANCES (i) SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR SUCH PARTY’S LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; OR (ii) SHALL CYBERSOURCE BE LIABLE TO COMPANY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF COMMISSIONS OWED AND NOT YET PAID HEREUNDER. THE EXCLUSIONS AND LIMITATIONS OF THIS SECTION DO NOT APPLY TO LIABILITY ARISING FOR BODILY INJURY OF A PERSON OR IN STATES THAT PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LIMITATIONS ON THE DURATION OF AN IMPLIED WARRANTY.

ARTICLE IX: GENERAL TERMS

Section 9.1 Marketing Activity/Promotional Activity/ Press Releases

Company will use Cybersource and/or current names for Cybersource products and services and will not add to, delete from, or modify any sales or marketing documentation or forms without the prior written consent of Cybersource. Cybersource hereby grants Company a limited, non-exclusive, non-transferable, royalty-free license to use the Cybersource trademarks, service marks, and marketing documentation for the marketing of Cybersource Services (collectively the “Advertising Materials”); provided that any use of Cybersource trademarks shall comply with Cybersource’s most current usage guidelines made known to Company and provided further that Company agrees to change, at Company’s expense, any Advertising Materials that Cybersource, in its sole and reasonable judgment, determines to be inaccurate, objectionable, misleading, or a misuse of Cybersource’s trademark or other intellectual property rights. Company, upon written demand by Cybersource, shall immediately cease the use of any materials that Cybersource deems to be in violation of this section. Notwithstanding any provision in this Agreement to the contrary, the license granted under this section shall be revoked immediately and automatically upon termination of this Agreement.
Customer grants Cybersource permission to display the Customer's trademarks, logos, service marks, or trade names alone or in combination with other works, in marketing materials to be developed and distributed by Cybersource; provided that any use shall comply with Customer’s most current guidelines made known to Cybersource.
Except for any announcement intended solely for internal distribution or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of either party, all media releases, public announcements or public disclosures (including, but not limited to, promotional or marketing material) by either party or its employees or agents relating to this Agreement or its subject matter, or including the name, trade name, trademark, or symbol of the other party, are prohibited without the prior written consent of both parties. Notwithstanding the foregoing, either party shall have the right to disclose the existence of the business relationship formed by this Agreement between Cybersource and Company without the other party's consent.

Section 9.2 Relationship of the Parties

The parties shall perform all of their duties under this Agreement as independent contractors. Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party, or to constitute the parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking.

Section 9.3 Feedback

Company acknowledges and agrees that Cybersource is in the business of making the Cybersource products and services widely available to others. Company may from time to time provide Feedback or related information to Cybersource for use in connection with, or otherwise regarding, Cybersource, programs, systems or services, or other information provided by Company to Cybersource for the purpose of enabling or improving Cybersource programs or services. Unless otherwise expressly agreed, all Feedback is and shall be given entirely voluntarily and neither party nor their respective Affiliates shall have any obligation to do so. If Company does provide Feedback, Company grants Cybersource a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to Company’s Intellectual Property in the Feedback in any format and in any manner without any obligation, payment, or restriction based on Company’s Intellectual Property or otherwise and for any and all purposes necessary for Cybersource to enjoy such license. To be clear, this license includes the rights to use and disclose the Feedback in any manner Cybersource choose, and to display, perform, copy, have copied, make, have made, incorporate, have incorporated, use, sell, offer to sell, import, distribute, and otherwise dispose of Cybersource programs, products, or services embodying such Feedback in any manner, but without reference to Company being the source of such Feedback. Nothing in this Agreement limits Cybersource rights to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

Section 9.4 Governing Law; Consent to Jurisdiction

This Agreement will be deemed entered into in California and will be governed by and interpreted in accordance with the laws of the State of California, excluding (i) that body of law known as conflicts of law and (ii) the United Nations Convention on Contracts for the International Sale of Goods. The parties agree that any dispute arising under this Agreement will be resolved in the state or federal courts in San Francisco County, California, and the parties hereby expressly consent to jurisdiction therein.

Section 9.5 Assignment

This Agreement may not be transferred or assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, consent of the other party shall not be required for assignment or transfer made by (i) operation of law or (ii) to an entity that acquires substantially all of its stock, assets or business. Except as provided in this section, any attempts by either party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other party shall be null and void.

Section 9.6 Entire Agreement

This Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.

Section 9.7 Modifications, Amendments, and Waivers

This Agreement may not be modified or amended, including by custom, usage of trade, or course of dealing, except by an instrument in writing signed by duly authorized employees of both of the parties hereto.
The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.

Section 9.8 Force Majeure

Neither party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of such party (each a “Force Majeure Event”); provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event.

Section 9.9 Severability

If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

Section 9.10 Survival

The provisions of this Agreement relating to Section 3.1b., Confidential Information, Limitation of Liability, and Governing Law shall survive any termination or expiration of this Agreement.

Section 9.11 Counterparts

This Agreement may be executed in counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same agreement.

Section 9.12 Headings

The headings in this Agreement are intended for convenience or reference and shall not affect the Agreement’s interpretation.

Section 9.13 Notices

All notices to Customer shall be given electronically, sent to the electronic mail address provided by the Customer to Cybersource. Notices to Cybersource must be in writing and sent to Cybersource Corporation, Post Office Box 8999 San Francisco, CA 94128, Attention: Cybersource Legal, Fax: (650) 286-6547. Such written notice will be deemed given upon five (5) business days when mailed by United States mail, registered or certified mail, return receipt requested or upon confirmation of receipt if sent by fax. Electronic mail notices shall be deemed given the next business day following the date delivered.

Schedule A
Commission Matrix

Cybersource Referral Partner Payment
Company Tier	Annual Transaction Volume	Net Revenue Share
Referral	< 5M	15%
Advanced	> 5M	25%
Premier	> 50M	Custom

Definitions:

Net Revenue Share shall mean the gross revenue less the costs and expenses associated with Cybersource Services provided by Cybersource to a Customer.
Cybersource Services shall mean generally, the Cybersource hosted services, online payment and fraud services, set forth in more detail in the Services Documentation.
Transaction Volume shall mean all invoiced transactions.

Tier Management:

Company referred Transaction Volume will be evaluated twice per year in July and January.
If the prior six (6) month rolling monthly Transaction Volume is greater than 416,666 transactions per month (5M transactions/12 months), Company will move to the Advanced tier.
Net Revenue Share will be based on pick-a-tier, where Net Revenue Share is calculated on the total Transaction Volume at the corresponding tier.

Cybersource reserves the right to move Company to the corresponding lower tier on a six-month basis if Company Transaction Volume falls below the six-month requirement outlined above.