Version 10: Last revised Wednesday, August 29, 2018
Welcome to the Bolt Financial Inc. (“Bolt,” “us,” “we,” “our”) revenue share program.
Please read this Revenue Share Agreement (“Agreement”) carefully before signing up for the revenue share program. Bolt is only willing to enter into this revenue share relationship with you and/or the entity you represent (“Company,” “you,” “your) if you accept all of the terms and conditions of this Agreement. By registering for the revenue share program, you are confirming that you understand this Agreement, and that you accept all of its terms and conditions. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind the entity to this Agreement. This Agreement will be effective as of the day you agree to it (hereinafter referred to as “Effective Date”). We may change the terms of this Agreement at any time for any reason by posting those changes here and, if the changes are material as determined in our discretion, sending you an email notice; provided, however, that any changes will not affect payments already earned or due as of the date of the change, or where the measuring period for any fees began prior to the date of the change. This Agreement includes dispute resolution through arbitration, for which you have the opportunity to opt-out. Please read this agreement in full.
“Bolt Net Fee Revenue” means the total gross amount of Bolt fees actually collected by Bolt and its affiliates directly or indirectly from a Bolt Merchant related to Bolt’s risk management, fraud prevention, and checkout services through the Tech Enablement with Bolt, less the sum of the following: (a) fraudulent chargebacks; (b) software related costs; (c) fraud operations and support costs; and (d) other fraud related expenses incurred by Bolt in connection with the Bolt Merchants’ transactions. For clarity, Bolt Net Fee Revenue excludes any amounts paid to Bolt by such merchants related to any other services or offerings.
“Bolt Net Processing Revenue” means the total gross amount of card transaction fees, other than Bolt Net Fee Revenue, actually collected by Bolt from a Merchant in connection with such Merchant’s CNP processing volume through the Tech Enablement with Bolt, less the sum of the following: (a) chargeback and refund transactions; (b) interchange, assessments, and other applicable Network fees; and other processing related expenses incurred by Bolt in connection with the Bolt Merchants’ transactions. For clarity, Bolt Net Processing Revenue excludes any amounts paid to Bolt by such merchants related to any other services or offerings.
“Merchant” means a party who may use Bolt’s services to process payments or who does use Bolt services to process payments.
“Merchant Referral” means a warm Merchant introduction made by Company to Bolt (through Company’s sole efforts), with the Merchant’s consent and including sufficient information to permit Bolt to contact and/or transact with Merchant, that ultimately leads to a merchant signing up, integrating with, and doing business with Bolt. The following scenarios do not qualify as a Merchant Referral:
- Merchant contacted Bolt prior to Company introducing Merchant;
- Bolt identified or contacted Merchant from another source prior to Company introducing Merchant;
- Bolt does not enter into a written agreement with Merchant within one year of Company’s first introduction of Merchant;
- Bolt sources Merchant through marketing materials, media programs, other referring partners, or other means where the Company does not make the original introduction between Merchant and Bolt;
- Any Merchant, brand, or property related to a previous Merchant Referral that signs up, integrates with, and does business with Bolt, and does not independently qualify as Merchant Referral; or
- Anything that otherwise does not fit the definition of Merchant Referral above.
“Company Net Revenue” means all revenue (net of costs, discounts, and refunds) that Company actually receives directly from a Customer Referral that uses the Company’s services.
“Customer” means a party who uses Company’s services.
“Customer Referral” means a warm introduction of Customer made by Bolt to Company that ultimately leads to Customer doing business with Company.
Merchant Referral Payment to Company. Company will receive a commission as follows:
|Merchant Referral Payment to Company|
|Tiers||Bolt Net Processing Revenue||Bolt Net Fee Revenue|
|Merchant referrals up to $25,000,000||20%||5%|
|Merchant referrals between $25,000,000 and $100,000,000||25%||7%|
|Merchant referrals over $100,000,000||30%||10%|
- Merchant referral payment to company for Bolt Net Processing Revenue from each Merchant Referral is for the initial 24 months such Merchant Referral uses the Bolt Services as a result of the Merchant Referral.
- Merchant referral payment to company Bolt Net Fee Revenue from each Merchant Referral is for the initial 12 months such Merchant Referral uses the Bolt Services as a result of the Merchant Referral.
The “Quota” is achieved if the total volume of payments processed by Bolt as a result of Merchant Referrals meets or exceeds the tiers per calendar year. The Quota calculation resets to zero on January 1st of each year.
Customer Referral Payment to Company. Bolt will receive 10% of the Company Net Revenue from each Customer Referral for the initial 12 months of Customer Referral using Company’s services.
Timing of Payments. Payments for Customer Referrals and Merchant Referrals shall be calculated on the first business day following the first day of February, May, August, and November (inclusive of all revenue obtain by that date since the last referral payment hereunder) and shall be payable within sixty (60) days of such calculation according to a payment method mutually agreed by the Parties in writing, which shall initially be by ACH transmittal into the bank account identified by either Party.
No Obligation to Engage. Despite the definitions above and the referral fees that may be associated with referrals, nothing herein obligates either Party to engage with or otherwise enter into any relationship with any Merchant or Customer.
Representations and Warranties. Each Party represents, warrants and covenants that:
It has the power to execute, deliver and perform this Agreement, and this Agreement is duly authorized, and will not violate any provisions of law, or conflict with any other agreement to which such Party is subject.
To the best of its knowledge, there is no action, suit or proceeding now pending or threatened by or against or affecting Bolt or Company which would substantially impair either Party’s right to carry on its business as now conducted or adversely affect its financial condition or operations.
It shall comply with all applicable laws, rules, regulations, and orders of a court of competent jurisdiction in its performance of obligations under this Agreement.
It shall at all times accurately and completely report the revenue subject of a Referral hereunder to the other party, on ne less than a quarterly basis and/or with referral payments hereunder.
Indemnity, Limitation of Liability.
Indemnification. Each party agrees to indemnify, defend and hold harmless the other party and any its related entities and the directors, officers, employees, subcontractors and agents thereof (“Indemnified Party”), with respect to any third party claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon or arises out of: (a) either party’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) either party’s gross negligence or willful misconduct; or (c) any warranty, condition, representation, indemnity or guarantee relating to (i) Bolt and Bolt related entities granted by Company to any lead, prospective partner, Merchant, or other third party or (ii) Company and Company related entities granted by Bolt to any lead, prospective partner, Customer, or other third party.
Notice of Indemnification. In claiming any indemnification hereunder, an Indemnified Party shall promptly provide Company with written notice of any claim which the Indemnified Party believes falls within the scope of the foregoing paragraphs. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Company shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the Indemnified Party shall not be final without the Indemnified Party’s written consent, which shall not be unreasonably withheld.
Limitation of Liability. Bolt shall have no liability with respect to the platforms or its obligations under this Agreement or otherwise for any indirect, consequential, exemplary, special, incidental or punitive damages, WHETHER BASED IN CONTRACT, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF BOLT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY. BOLT’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY), OR OTHERWISE, ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL NOT EXCEED THE GREATER OF (1) $1,000 OR (2) THE TOTAL COMPENSATION PAID OR PAYABLE TO COMPANY BY BOLT UNDER THE AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE ASSERTION OF THE RELEVANT CLAIM.
Proprietary Rights of Bolt. As between Company and Bolt, the marketing materials provided by Bolt (“Bolt Materials”), all demographic and other information relating to leads, prospective partners and partners, the platforms and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Bolt or otherwise related to Bolt, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Bolt Property”) shall be and remain the sole and exclusive property of Bolt. To the extent, if any, that ownership of any Bolt Property does not automatically vest in Bolt by virtue of this Agreement, or otherwise, Company hereby transfers and assigns to Bolt, upon the creation thereof, all rights, title and interest Company may have in and to such Bolt Property, including the right to sue and recover for past, present and future violations thereof.
Each Party acknowledges that it may receive Confidential Information of the other Party. For purposes of this Agreement, “Confidential Information” includes the terms of this Agreement, any customer information, merchant information, financial data and budgetary or proprietary business information, income or sales data or projections, customer lists, merchant lists, business operations, policies, procedures and techniques, advertising summary or tracking reports or other reports generated in accordance with this Agreement, schematics, ideas, techniques, know how, concepts, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements, patents, copyrights, trade secrets or other intellectual property of any kind or nature, plans for future development and new product concepts, contemplated products, research, development, and strategies. The term “Confidential Information” shall not include information which, prior to delivery, was already in the recipient Party’s possession; is or becomes generally available to the public through lawful means, other than as the result of unauthorized disclosure by the recipient Party or its representatives; becomes available to a recipient Party without confidential or proprietary restriction by a third party who rightfully possesses the information without confidential or proprietary restrictions; or the recipient Party can demonstrate was developed by such recipient Party without reference to the Confidential Information of the other Party. Except as otherwise specifically provided in this Agreement, each Party agrees that it will not publish, communicate, divulge, or disclose to any person or entity any Confidential Information of the other Party, except in the performance of the terms of this Agreement.
Each Party agrees that it will not use any Confidential Information of the other Party except (i) for the benefit of the other Party, and (ii) as necessary to fulfill its obligations or exercise its rights under this Agreement, and only for such purposes and only for the time that it is necessary to do so, except to the extent it is otherwise permitted under this Agreement. Each Party will take commercially reasonable security precautions, at least as great as the precautions it takes to protect its own Confidential Information and as may be required by applicable laws, with respect to the Confidential Information of the other Party which it receives and will disclose such Confidential Information only on a need to know basis and only to its employees, contractors, subsidiaries or agents who are obligated to treat such Confidential Information in a manner consistent with all the obligations of this Agreement. Liability for damages due to disclosure of the Confidential Information by any such third party shall be with the Party that disclosed the Confidential Information to the third party. Each Party shall promptly notify the other Party upon discovery of any loss or unauthorized disclosure of the Confidential Information of the other Party.
In the event that the recipient of Confidential Information is requested by a governmental agency or becomes legally compelled to disclose any Confidential Information of the other Party, it is agreed that such recipient Party will provide the disclosing Party with prompt written notice of such request(s) to enable the disclosing Party to seek a protective order to protect and preserve the confidential nature of the Confidential Information. In such event, each Party agrees that it will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to the Confidential Information that is disclosed.
Term And Termination. This Agreement will commence on the Effective Date and continue in full force for a period until it is terminated or canceled as set forth herein. Either Party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other Party. Upon expiration or termination of this Agreement: (a) each Party shall return to the other Party all property of the other Party in its possession or control (including all creative and all Confidential Information (defined below)); (b) Company shall immediately cease displaying any Bolt Materials (defined below) on any website or otherwise; (c) all rights granted to Company hereunder will immediately cease; and (d) all existing revenue sharing, and any payments in connection therewith in Section B continues to completion of the durations outlined in such Section, excluding cases where Bolt terminated this Agreement due to a breach by Company of Company’s obligations herein or cases where a party ceases operations entirely as a result of insolvency.
Governing Law, Jurisdiction and Dispute Resolution.
You agree that the laws of the State of California and the laws of the United States applicable therein shall govern the construction and interpretation of this Agreement and the rights of the Parties hereunder, without regard to conflict or choice of laws principles and provisions. The United Nations Convention on the Sale of Goods shall not apply to this Agreement. Any disputes arising hereunder shall be adjudicated in the state and federal courts having jurisdiction over San Francisco, California.
Any controversies, claims or disputes arising out of or relating to this Agreement or your use of Bolt’s services shall be resolved only by confidential arbitration before a single arbitrator by the American Arbitration Association (“AAA”) pursuant to its Revised Commercial Rules (2013), currently available at http://go.adr.org/commercialrules, as such rules may be revised by the AAA. The arbitration proceedings shall be held in the English language in San Francisco, California. The arbitrator appointed pursuant to this Section shall have the authority to award costs of the hearing in addition to having the authority to resolve the controversy, claim or dispute, but under no circumstances is the arbitrator authorized or empowered to award special, punitive, or multiple damages against either Party. The decisions of the arbitrator shall be binding and conclusive upon all Parties and judgment upon any award rendered by the arbitrator may be entered by any court of competent jurisdiction.
If Company wishes to opt-out of using arbitration as a dispute resolution mechanism, Company must send, within thirty (30) days of the execution of this agreement, a notice to:
Attn: Bolt Arbitration Opt-out, Bolt Financial, Inc., 288 7th Street, San Francisco, CA 94103
In the event that a Party obtains injunctive relief from a court in accordance with this Agreement, such injunctive relief shall take precedence over interim relief granted by an arbitrator, but injunctive or other equitable remedies granted in an arbitration award — or a decision by the arbitrator in a final arbitral award denying the continuation of injunctive relief — shall supersede prior injunctive relief and shall be binding upon the Parties.
Arbitration shall proceed solely on an individual basis without the right for any Claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to Claims between you and us alone. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Notwithstanding any other provision in this Agreement, and without waiving either Party’s right of appeal, if any portion of this provision 7.c is deemed invalid or unenforceable, then the entire “Arbitration Provision” 7.b shall not apply.
We may give notices to you by email to the address you supply, by courier, or U.S. Mail. Our notice to you by email shall be effective on the date such email is sent by us; notice sent by courier will be effective on the date delivered; and notice sent by U.S. Mail shall be effective 3 days after the date of mailing.
You may give notices to us by email addressed to firstname.lastname@example.org, or by courier or U.S. Mail addressed to Bolt Financial, Attention; Company Services Department, 288 7th Street, San Francisco, CA 94103 with a copy to Bolt Financial, Attention: Corporate Secretary, 288 7th Street, San Francisco, CA 94103. Your notices to us by email shall be effective on the date received; your notices to us by courier will be effective on the date delivered; and your notices to us sent by U. S. Mail will be effective 3 days after the date of mailing.
Either Party may change its addresses for notices by giving notice to the other Party of the new addresses in accordance with this Section.
Non-Solicitation. Company, its agents, principals and its affiliates shall not cause or permit any of its or their employees, agents, subsidiaries, sales persons or others to solicit, induce, or otherwise cause any Merchant that became a Bolt customer via a Merchant Referral or attempted Merchant Referral to terminate the Merchant’s relationship with Bolt or use any services that compete with Bolt’s services. This section shall survive for three (3) years following the termination of this Agreement.
Company agrees that Bolt has the right to identify the Company as part of the revenue share program and use the Company’s name and logo on its website, in press releases and marketing materials to promote its payment processing services or revenue share program.
Neither Party shall bind or attempt to bind the other Party, or represent that the other Party is bound, to any agreement, commitment or understanding without such Party’s express written consent given in advance, and any attempt to do so shall be null and void. The Parties’ relationship to each other in all matters relating to the performance of this Agreement is that of independent entities. Nothing contained herein will place the parties in the relationship of participants in a joint venture or employer-employee and, except as set forth herein, neither Party will have any right to obligate or bind the other in any manner whatsoever nor represent to a third party that it has any right to enter into any binding obligation on the other’s behalf.
This Agreement, including any terms and conditions incorporated herein by reference, constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with the subject matter hereof.
If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.