BCA CAPITAL PARTNERS MERCHANT AGREEMENT
This BCA Capital Partners Merchant Agreement (this “Merchant Agreement”) is between BCA Capital Partners LLC (“BCA” or “We”) and the merchant entity accepting these terms via click-thru, entering into an order for services incorporating this Merchant Agreement by reference, or otherwise accessing the BCA services (“Applicant” or “You”). Each of BCA and Applicant may be referred to as a “Party” and collectively as the “Parties.”
1. DEFINED TERMS. The following terms, when capitalized, have the meaning given below:
“Affiliate” means any legal entity that a Party owns, that owns a Party, or that is under its common ownership. “Ownership” means, for the purposes of this definition, control of more than a fifty percent interest in an entity.
“Agreement” means collectively this Merchant Agreement and any other addenda which govern the provision of the Services.
“Applicant” means a merchant entity which applies for Financing utilizing the Services, or any other end user of the Services as contemplated in this Merchant Agreement.
“Applicant Data” means any information: (i) an Applicant transmits through, to, or using the Services, or (ii) which We provide to You in respect of or in relation to Applicant.
“Confidential Information” means non-public information disclosed by one Party to the other in any form that: (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either Party’s products, customers, marketing and promotions, know-how, or the negotiated terms of this Merchant Agreement; and which is not independently developed by the other Party without reference to the other’s Confidential Information or otherwise known to the other Party on a non-confidential basis prior to disclosure.
“Distributor” means, if applicable, the entity operating the Distributor Platform.
“Distributor Platform” means any website, SaaS, PaaS, or other internet platform used in connection with and which integrates with or distributes the Services or facilitates the Financing.
“Fees” means any amount due by Applicant pursuant to or under any Financing Agreement.
“Financing” means a cash advance provided to a merchant in exchange for purchasing future receipts of the Merchant’s business.
“Financing Agreement” means any contract, agreement, or other document to which BCA and Applicant are parties whereby BCA provides one or more Financings to Applicant subject to the terms and conditions set forth therein.“Intellectual Property” means patents, copyrights, trademarks, trade secrets, and any other proprietary intellectual property rights.
“Representatives” means a Party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, partners, shareholders, members, accountants, advisors, and agents. “Services” means all services provided by BCA and/or its Representatives in connection with a Financing transaction and as otherwise agreed between You and BCA from time to time.
2. SERVICES.
2.1. General. Subject to Your compliance with the terms of this Merchant Agreement, and during the term of this Merchant Agreement, You may access and use the Services. We will provide the Services in accordance with this Merchant Agreement and any laws applicable to BCA. We will provide general assistance in connection with Your use of the Services.
2.2. Payment Processing. If BCA agrees to make or receive payments to or from a third-party on Your behalf as part of the Services, then You acknowledge that the processing of such payments may take 7-10 business days and release BCA and its Representatives from any liability whatsoever in connection with such payments, whether timely made or not.
3. USE LIMITATIONS. You may only use the Services in connection with a Financing transaction or business research purposes. You may not use the Services in connection with any personal, family, consumer, or household purposes. You may not use the Services for any marketing purposes unless separately agreed by BCA in writing.
4. APPLICANT REQUIREMENTS. You represent, warrant, and covenant that: (i) Applicant is an entity located in the United States which is in good standing under the applicable state business organization, secretary of state’s office, commercial code, and department of revenue, (ii) the Applicant business owner is at least 18 years of age; (iii) a duly authorized officer or managing member of the Applicant is applying for the Financing, (iv) Applicant, its officers, directors, members, and partners, are not Specially Designated Nationals, a credit clinic, a credit repair organization, listed on an Experian Customer Alert List, included on any government issued prohibition list (as published by OFAC, Treasury, or a similar regulatory entity), and have not been involved in credit fraud or other unethical business practices, (v) all Applicant Data You provide shall be true, correct, complete, and accurate, and (vi) You are in compliance and shall comply with all applicable federal, state and local laws, rules and regulations and You have valid permits, authorizations and licenses to own, operate and lease Your properties and to conduct the businesses in which You are presently engaged and/or will engage in hereafter.
5. SECURITY. You agree that you will reasonably cooperate with BCA’s investigation of outages, security incidents, and any suspected breach of this Merchant Agreement. You are responsible for keeping Your account permissions, billing, and other account information up to date. You may be provided with a unique user ID as part of Your use of the Services, and will use reasonable and appropriate physical, technical, and organizational controls to secure such credentials, will immediately notify BCA of any unauthorized use of such credentials, and agree that You are responsible for the use of such credentials by any Party, whether authorized by You or not.
6. APPLICANT INFORMATION. You agree that We may disclose Applicant Data to Our Representatives and third parties as necessary to provide the Services. You agree that We may provide Applicant Data to the Distributor, and may furnish to Representatives and to the Distributor a copy of Applicant’s credit report information (including credit scoring and derivative commercial risk assessments created with the use of Applicant Data and/or any credit report We receive as part of the Services) if one is authorized by Applicant in connection with the Services. You consent to BCA and its Representatives using Applicant Data to contact You via phone, text, SMS or any similar mechanism, including through the use of an automated telephone dialing system, for any purpose in connection with any application completed by You, any Financing, the Services, marketing, or any other similar purpose. You agree that if You do not qualify for Financing with Us, We have a large network of funding partners who may be able to help You. In order to facilitate Your access to the business capital You need, You agree that We may assign and deliver Applicant Data (including Your authorization and consent to obtain information from credit bureaus and other sources for purposes of prequalification) to affiliated parties and/or Our small business funding network to determine whether You prequalify for such third-party financing services. You also authorize Us to transmit and share the Applicant Data and any application completed by You, along with any information obtained in connection with any application completed by You, with any or all of Our Representatives.
7. FEES & PAYMENTS. Fees, if any, associated with the Services will be as identified in the applicable Financing Agreement between the Parties. You authorize BCA to: (i) receive or pay a commission from or to third parties, including Representatives, in connection with its provision of the Services without disclosure to You, and (ii) to automatically charge You via the payment method which You provide in connection with the Services. You agree that You will keep an updated payment method on file with BCA in connection with any Services provided for a Fee. All Fees are due immediately upon their incurrence and without invoice. All amounts due under the applicable agreement are exclusive of any value added, goods and services, sales, use, property, excise and like taxes, import duties, and/or applicable levies.
8. INTELLECTUAL PROPERTY.
8.1. Pre-Existing. Each Party shall retain exclusive ownership of Intellectual Property created, authored, or invented by it prior to the commencement of the Services. If You provide BCA with Your pre-existing Intellectual Property (“Merchant IP”) then You hereby grant to BCA, during the term of the applicable Financing Agreement, a limited, worldwide, non-exclusive, royalty-free right and license (with right of sublicense where required to perform the Services) to use the Merchant IP for the purposes of providing the Services. You represent and warrant that You have all rights in the Merchant IP to grant this license and that BCA’s use of such Merchant IP shall not infringe on the Intellectual Property rights of any third-party.
8.2. Created by BCA. Excluding any Merchant IP, BCA shall own all Intellectual Property created as part of providing the Services. Unless otherwise specifically stated in this Merchant Agreement, and subject to Your payment in full for the applicable Services, BCA grants You a limited, worldwide, non-exclusive, non-transferable, right and license (without right to sublicense) to use and display in connection with the Distributor Platform any Intellectual Property provided to You by BCA as part of the Services for the limited purposes necessary for You to enjoy the benefit of the Services for your own internal business purposes.
8.3. Infringement. If the delivery of the Services infringes the Intellectual Property rights of a third-party and BCA determines that it is not reasonably or commercially practicable to obtain the right to use the infringing element, or modify the Services such that they do not infringe, then BCA may terminate the applicable Financing Agreement on 90 days’ notice and will not have any liability on account of such termination, and Applicant hereby covenants and agrees that Applicant shall not institute, pursue, or maintain any legal action, suit, or claim against BCA or Our Representatives in any court or before any administrative body or tribunal, with respect to the alleged Intellectual Property infringement.
9. DISCLAIMERS.
9.1. We do not represent that the Services will be always available, secure, or error free. At Your request, We may provide Services that are not required by this Merchant Agreement, any such services shall be provided as is with no warranty whatsoever. All Services and Applicant Data provided by BCA are provided on an as is and as available basis and are not guaranteed and neither BCA, its Representatives, nor their data sources and other providers will be liable to Applicant for any loss or damage based on the content of the Applicant Data or Services or any errors or omissions therefrom.
9.2. BCA and its Representatives and the Distributor disclaim any and all warranties not expressly stated in this Merchant Agreement to the maximum extent permitted by law, including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement.
9.3. BCA makes no representation or warranty whatsoever regarding any third-party products or services which We may recommend for Your consideration, and shall have no liability whatsoever for the actions, omissions, or determinations of any Representative. We do not guarantee that Applicant will receive Financing, or that any offers from Us or Our Representatives will be on commercially advantageous terms.
10. TERM & TERMINATION.
10.1. Term. The term of this Merchant Agreement shall commence and terminate or expire on the same corresponding dates as specified in the Financing Agreement. You may not be permitted to terminate this Merchant Agreement unless and until all applicable future receipts payable by Applicant under the Financing Agreement have been received by Us or our applicable Representative.
10.2. Suspension. We may suspend Your access to the Services if: (i) We reasonably believe You are using the Services in violation of this Merchant Agreement or applicable law, (ii) Your payment to Us or our applicable Representative is 5 days or more late, or (iii) as We deem reasonably necessary to protect the integrity of the Services or Applicant Data, or to comply with applicable law. We may temporarily suspend the Services at any time as required for maintenance, deployment, upgrades, and testing.
10.3. Termination for Cause. Either Party may terminate this Merchant Agreement for cause on written notice if the other Party materially breaches this Merchant Agreement and does not remedy the breach within 30 days of the other Party’s written notice describing the breach, provided that We may immediately terminate this Merchant Agreement if Your payment to Us or our applicable Representative is 5 days or more late (whether or not We exercise Our rights to suspend the Services prior to such termination).
11. CONFIDENTIALITY. Each Party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of its legal rights under this Merchant Agreement, or as required by law, and will use reasonable care to protect Confidential Information from unauthorized disclosure. Each Party agrees not to disclose the other’s Confidential Information to any third-party except: (i) to its Representatives; (ii) as required by law; or (iii) in response to a subpoena or court order or other compulsory legal process, provided that the Party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice.
12. LIMITATION OF LIABILITY.
12.1. BCA, ITS REPRESENTATIVES AND THEIR DATA SOURCES AND OTHER PROVIDERS DO NOT GUARANTEE OR WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES, APPLICANT DATA OR THE MEDIA ON WHICH THE DATA IS PROVIDED AND SHALL NOT BE LIABLE TO APPLICANT FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED IN WHOLE OR IN PART BY BCA’S, ITS REPRESENTATIVES’ OR THEIR DATA SOURCES AND OTHER PROVIDERS’ ACTS OR OMISSIONS, WHETHER NEGLIGENT OR OTHERWISE, IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING OR DELIVERING THE APPLICANT DATA OR SERVICES.
12.2. IN NO EVENT SHALL BCA, ITS REPRESENTATIVES OR THEIR DATA SOURCES AND OTHER PROVIDERS BE LIABLE TO APPLICANT OR ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS, LOSS OF DATA, OR LOST PROFITS), WHETHER FORESEEABLE OR NOT, AND HOWEVER CAUSED, EVEN IF BCA, ITS REPRESENTATIVES OR THEIR DATA SOURCES AND OTHER PROVIDERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PARAGRAPH STATES BCA’S, ITS REPRESENTATIVES’ AND THEIR DATA SOURCES AND OTHER PROVIDERS’ ENTIRE LIABILITY AND THE SOLE REMEDY OF APPLICANT IN CONNECTION WITH THE PROVISION OF THE APPLICANT DATA AND SERVICES.
IF, NOTWITHSTANDING THE PRIOR PARAGRAPH, LIABILITY CAN BE IMPOSED ON BCA, ITS REPRESENTATIVES OR THEIR DATA SOURCES AND OTHER PROVIDERS, THEN APPLICANT AGREES THAT THE AGGREGATE LIABILITY FOR ANY AND ALL LOSSES OR INJURIES TO APPLICANT IN CONNECTION WITH ANYTHING TO BE DONE OR FURNISHED UNDER THIS MERCHANT AGREEMENT, REGARDLESS OF THE CAUSE OR THE LOSS OR INJURY (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NEVER EXCEED THE AMOUNT PAID BY APPLICANT TO BCA OR OUR APPLICABLE REPRESENTATIVE FOR THE AFFECTED SERVICES AND APPLICANT COVENANTS AND PROMISES THAT IT WILL NOT SUE BCA, ITS REPRESENTATIVES, OR THEIR DATA SOURCES AND OTHER PROVIDERS FOR AN AMOUNT GREATER THAN SUCH SUM AND THAT IT WILL NOT SEEK PUNITIVE DAMAGES IN ANY SUIT AGAINST BCA, ITS REPRESENTATIVES OR THEIR DATA SOURCES AND OTHER PROVIDERS.
13. INDEMNIFICATION.
13.1. If We, Our Affiliates, or any of Our or their Representatives (the “Indemnitees”) are faced with a legal claim by a third-party (i) arising out of Your actual or alleged willful misconduct, breach of applicable law, gross negligence, or breach of this Merchant Agreement, (ii) based on Your breach of Your agreement with a Distributor or Your Representatives, or (iii) arising out of or related to Your alleged or actual infringement of any third-party intellectual property rights by the Merchant IP, then You will pay the cost of defending the claim (including reasonable legal fees) and any damages award, fine or other penalty that is imposed on the Indemnitees as a result of the claim.
13.2. We will choose legal counsel to defend the claim, provided that the choice is reasonable and is communicated to You. You must comply with Our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without Your consent, which may not be unreasonably withheld, delayed, or conditioned. You must pay costs and expenses due under this section as We incur them.
14. ASSIGNMENT/SUBCONTRACTORS. You may not assign this Merchant Agreement or any Financing Agreement without the prior written consent of BCA. BCA may use its Representatives to perform all or any part of the Services, but BCA remains responsible under this Merchant Agreement for work performed by its Representatives to the same extent as if BCA performed the Services itself.
15 NOTICES. Your routine communications to BCA regarding the Services should be sent to us by email at friends@bca247.com. To give notice regarding termination of this Merchant Agreement for breach, indemnification, or another legal matter, You must send it by electronic mail and first-class post to:
BCA’s routine communications regarding the Services and legal notices will be sent by email or post to the individual(s) You designate as Your contact(s) on Your account. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a business day, as of the beginning of the first business day following the time posted or delivered. For purposes of counting days for notice periods, the business day on which the notice is deemed received counts as the first day.
16. PUBLICITY, USE OF MARKS. You agree that We may publicly disclose that We are providing Services to You and may use Your name, logo, and Merchant IP to identify You in BCA promotional materials, including press releases. You may not use the BCA name or logo, or other identifying indicia, without BCA’s prior written consent.
17. FORCE MAJEURE. Neither Party will be in violation of this Merchant Agreement if the failure to perform the obligation is due to an event beyond its control, such as significant failure of a part of the power grid, failure of the internet, natural disaster or weather event, war, riot, insurrection, epidemic, strikes or labor action, terrorism, or other events beyond such Party’s reasonable control.
18. GOVERNING LAW & VENUE. This Merchant Agreement is governed by the laws of the State of Delaware, USA, exclusive of any choice of law principle that would require the application of the law of a difference jurisdiction. [APPLICANT AND BCA AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS BETWEEN THEM IN A COURT OR BEFORE A JURY. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO THIS MERCHANT AGREEMENT OR THE SERVICES WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.]1 THE SEAT OF THE ARBITRATION SHALL BE TENNESSEE. No claim may be brought as a class or collective action, nor may You assert such a claim as a member of a class or collective action that is brought by another claimant. Each Party agrees that neither shall bring a claim under this Merchant Agreement more than 2 years after the time that the claim accrued. This Merchant Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
19. ADDITIONAL TERMS.
19.1. Representative Restrictions. For purposes of this Section 19.1, You agree that any applicable Representative shall be an intended third-party beneficiary of this Merchant Agreement. In consideration of Your right to receive and use Applicant Data and the Services from BCA and/or a Representative, You understand and certify to BCA and such Representative that the Services: (i) will be used solely in connection with a present or prospective Financing transaction with the business entity inquired upon or for other legitimate commercial purposes, including business research; (ii) will not be used as a factor in establishing an individual’s eligibility for (a) a Financing to be used primarily for personal, family or household purposes, or (b) employment; (iii) will be used in compliance with all applicable laws, regulations and ordinances, and all special use restrictions set forth in this Merchant Agreement or adopted by the applicable Representative hereafter; and (iv) will be maintained in confidence and disclosed only to persons whose duties reasonably relate to the business purposes for which the information was requested.
19.2. Proprietary Scoring. We may assign a proprietary credit and risk scoring metric to an Applicant (the “Score”). The Score may or may not be used by Us or Our Representatives and is not an endorsement or guarantee of Applicant’s credit worthiness as seen by Us or Our Representatives. There are many scoring models used in the marketplace and each scoring model may have its own set of factors and scale. The information and credit scoring may be different than that used by a Representative. The Score may not be identical in every respect to any other credit score produced by another company or used by a given Representative. The Score is calculated using Applicant’s actual data from Applicant’s credit file on the day that the Score is calculated. Other factors, such as length of employment and annual salary, are often taken into consideration by funders when making decisions about a Financing. How BCA and each Representative weighs its chosen factors may vary, but the exact formula used to calculate the Score is proprietary. Each consumer reporting agency has its own set of data, which may result in a separate Score for each of Applicant’s credit files. All Scores provided by BCA or Our Representatives shall be held in strict confidence and may never be sold, licensed, copied, reused, disclosed, reproduced, revealed or made accessible, in whole or in part, to any person except as required by law or as otherwise set forth in this Merchant Agreement.
20 MISCELLANEOUS.
20.1. Some terms are incorporated into this Merchant Agreement by reference to pages on the BCA website or the Financing Agreement and may be revised from time to time. Such revisions will be effective and supersede and form part of this Merchant Agreement as of the time (i) You enter into a Financing Agreement or any amendment thereto referencing the terms subject to the revisions or (ii) the revisions are posted to the BCA website. If there is a conflict between the terms of this Merchant Agreement, the documents will govern in the following order: the Financing Agreement, this Merchant Agreement, and the BCA website. The headings or captions in this Merchant Agreement are for convenience only. Unless otherwise expressly permitted in this Merchant Agreement the terms of this Merchant Agreement may be varied only by a written agreement signed by both parties that expressly refers to this Merchant Agreement. You represent and warrant that You have all right and authority to enter into this Merchant Agreement and to bind Applicant to this Merchant Agreement.
20.2. If any part of this Merchant Agreement is found unenforceable, the rest of this Merchant Agreement will continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to this Merchant Agreement. Each Party may enforce its respective rights under this Merchant Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the Parties is that of independent contractors and not business partners. Neither Party is the agent for the other and neither Party has the right to bind the other on any agreement with a third-party. The use of the word “including” means “including without limitation.” Other than Representatives for the purposes of Sections 2.2, 9, 12, and 13, or as expressly identified as a third-party beneficiary in this Merchant Agreement, there are no third-party beneficiaries to this Merchant Agreement.
20.3. The following provisions shall survive expiration or termination of this Merchant Agreement: Intellectual Property, Confidential Information, Indemnification, Limitation on Damages, Governing Law, Notices, Miscellaneous, all terms of this Merchant Agreement requiring You to pay any fees for Services provided prior to the time of expiration or termination, or requiring You to pay an early termination fee, and any other provisions that by their nature are intended to survive expiration or termination of this Merchant Agreement.
20.4. This Merchant Agreement constitutes the complete and exclusive understanding between the Parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s) or understanding(s), written or oral.
20.5 Except as expressly provided herein, this Merchant Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Merchant Agreement.
