Terms & Conditions

Non- Exclusive Referral Agreement
Facilitated by Durango Merchant Services LLC

This Referral Agreement (“Agreement”) is made and entered into on this day by Durango Merchant Services LLC with offices at 10 Town Plaza #162, Durango, Colorado, 81301 (hereinafter “Durango”) and Affiliate (hereinafter “AB” or “Independent Contractor”) (collectively referred to as the “Parties”):

WHEREAS, the Parties desire to enter into this Agreement with one another, under the terms and conditions set forth below, for the purpose of referring and placing, as the case may be, merchants, merchant aggregators, agents, and processing solutions.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

  1. Financial Terms
    1. Commissions shall be paid to the referring Party, by the other Party, on any and all referrals which result in the successful placement of the referred account(s).
    2. Commissions shall be paid based on an agreed upon percentage split of any residuals paid out by the processing Party to its Agent/Partner/ISO.
    3. In the event either Party refers a processing solution to the other Party or any Agent/Partner/ISO/Affiliate thereof, the referring Party shall be paid by the other Party a 10% override commission on any and all profits earned as a result of such referral.
    4. AB recognizes that DMS may sometimes revisit a lead after a decline decision has been made if we acquire a new solution that accepts that type of lead.  If Durango is able to place the account AB will get credit for it and it will show up on their monthly report.  
    5. In the event AB refers an Agent to Durango, Durango shall pay AB a commission on any and all profits earned as a result of such referral
    6. Commissions shall be paid 6 weeks in arrears.
    7. Commissions shall be paid for as long as the merchant is processing through a solution facilitated by a Party to this Agreement.
    8. AB agrees that if any uncured terms or provisions are disregarded or broken within the signed NDA, with the exception of fraud, then all residuals will be forfeited.
    9. Commissions must reach 100.00 USD for any payment to be made.

  2. Term
    1. The term of this Agreement shall be one (1) year commencing on the date first above written. This Agreement shall renew automatically for successive periods of one (1) year on each respective anniversary date (“Anniversary Date”) unless either Party gives written notice to the other Party of its intention not to renew this Agreement at least ninety (90) days before the Anniversary Date as required under Section 2.2 below.
    2. If either Party wishes to terminate this Agreement, that Party must give written notice to the other of its intention at least ninety (90) days in advance of the next Anniversary Date.
    3. In the event of any breach or default by either Party of any obligation under this Agreement, the other Party, at its sole discretion, may cancel this Agreement by giving to the other Party at least thirty days prior written notice, provided that the other Party does not cure the breach or default (if it is curable) during the thirty-day period following such provision of notice.

  3. Obligations
    1. AB agrees that they will contact their dedicated account manager for any updates they require on an account they have sent DMS to review. 
    2. Any transaction or commission reports provided to either Party by a Processing Entity, Bank, Agent, ISO, or Partner which are of interest to the other Party for reasons associated with this Agreement shall be shared with the interested Party within a reasonable amount of time after receipt of the report
    3. The Parties will make a reasonable effort to collect any fees or residuals due to them from a 
    4. Processor, Bank, Agent, ISO, or Partner to which both Parties have a claim.

  4. Amendments
    1. Should either Party wish to amend any portion of this Agreement, they must inform the other Party in writing. Any amendment to this Agreement must be in writing and signed by both Parties.

  5. Amendments
    1. Should either Party wish to amend any portion of this Agreement, they must inform the other Party in writing. Any amendment to this Agreement must be in writing and signed by both Parties.

  6. Non-assignability.
    1. Neither Party may transfer or assign any rights or duties it may have hereunder nor any interest it has arising under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld. In the event either Party becomes insolvent or is the subject of any bankruptcy or insolvency proceedings, the other Party may, at its sole option, terminate this Agreement. This Agreement is binding upon the successors and permitted assigns of Durango and AB.


  8. Indemnification - mutual
    1. AB and Durango  will both  indemnify and hold harmless each other and its officers and representatives (each being an “Indemnified Party”) from and against all losses, costs, expenses, claims, damages and liabilities (the “Liabilities”) to which may become subject under any applicable law, or any claim made by any third party, or otherwise, to the extent they relate to or arise out of the performance by both of the services contemplated under this Agreement.  Both will reimburse any Indemnified Party for all reasonable costs and expenses (including attorney’s fees and expenses) as they are incurred in connection with the investigation of, preparation for, or defense of any pending or threatened claim for which the Indemnified Party would be entitled to indemnification under the terms of the previous sentence, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party hereto, provided that, subject to the following sentence, both  shall be entitled to assume the defense thereof at its own expense, with counsel satisfactory to such Indemnified Party in its reasonable judgment.  
    2. INDEPENDENT CONTRACTORS-REFERRAL AGENT. It is understood and agreed by the parties that ISO is an independent contractor-referral agent with respect to Durango. Neither ISO nor ISO's employees, consultants, contractors or agents (collectively, "ISO Agents") are agents, employees, partners or joint ventures of Durango, nor do they have any authority to bind Durango by contract or otherwise to any obligation. Under no circumstances will ISO Agents represent to the contrary, either expressly, implicitly, by appearance or otherwise. Durango will not provide, and ISO shall not be entitled to any benefits Durango provides to its employees, including but not limited to health insurance, disability insurance, paid vacation, paid holidays, pension or any other employee benefit. In accordance with the nature of this engagement, no taxes, whether federal or state, or payment of social security, Medicare, unemployment or workers' compensation are to be paid or withheld by Durango from fees paid to ISO for services rendered. ISO accepts responsibility for such taxes, withholdings and payments and shall indemnify DMS for any losses or claims arising from ISO's failure to withhold remit or pay such taxes. Any payments made to ISO shall be reported on a 1099 Statement of Remuneration Paid slip.

  9. Limitation of liability/limitations
    1. Durango shall have no indemnity obligation for claims of copyright or trademark infringement resulting or alleged to result from any combination, operation, or use by the Independent Contractor of any service provided under this Agreement.
    2. In no event shall Durango or its representatives or Subsidiaries be liable for any consequential, indirect, punitive, incidental or special damages, whether foreseeable or unforeseeable (and whether or not Durango has been advised of the possibility thereof), whether based upon lost goodwill, lost profits, loss of use of money, loss of data or interruption in its use or availability, or otherwise arising out of breach of any express or implied warranty, breach of contract, negligence, misrepresentation, strict liability in tort or otherwise, and whether based on any Section of this Agreement, any transaction performed or undertaken under or in connection with this Agreement, or otherwise.  Durango’s and its representatives’ liability for damages, regardless of the form of action, shall in any event be limited to the aggregate amount paid to Durango for the services performed by Durango under this Agreement.

  10. Waiver. 
    1. The failure of either Party hereto to exercise in any respect or on any occasion any right provided for by this Agreement shall not constitute a waiver by such Party of such right, nor a waiver of any other right provided for by this Agreement.

  11. Force Majeure. 
    1. Any delay or failure in the performance by either Party of any duty or obligation required under this Agreement shall be excused if and to the extent caused by the occurrence of a Force Majeure Event, and no liability shall attach to a Party whose performance is delayed or prevented by a Force Majeure Event.  For the purposes of this Agreement, a “Force Majeure Event” shall mean a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of the Party claiming Force Majeure, including acts of God, fire, flood, explosion, riot, war, hurricane, sabotage, terrorism, vandalism, accident (that is not caused by or otherwise the responsibility of either Party), restraint of government, governmental acts, injunctions, labor strikes, power or utility or equipment failure, and other like events that are beyond the reasonable anticipation and control of the Party affected thereby, despite such Party’s reasonable efforts to prevent, avoid, delay or mitigate the effect of such acts, events or occurrences, and which events or the effects thereof are not attributable to a Party’s failure to perform its obligations under this Agreement.  

  12. Survivability
    1. Notwithstanding the expiration or termination of this Agreement for any reason whatsoever, all covenants and agreements to be performed and/or observed by the Parties under this Agreement or which by their nature survive the expiration or termination of this Agreement, including without limitation, those set out in Sections 1 and 2 hereof, shall survive any such expiration or termination.

  13. The Parties hereby agree that this Agreement may be transmitted by facsimile transmission and that acceptance of this Agreement may be similarly transmitted, and that if this offer is signed by both Parties and each change thereto is initialed by both Parties, this Agreement so transmitted shall constitute a legally binding agreement.

  14. This Agreement shall not in any way nullify, in whole or in part, any previous contracts or agreements by and between the Parties.

  15. Choice of Law, Consent to Personal Jurisdiction and Venue. 
    1. The laws of the State of Colorado shall govern this Agreement and any disputes arising out of or related to it.  The Parties agree that the state or federal courts located in Colorado shall have exclusive jurisdiction and venue to hear any such dispute, and agree that any such dispute may be brought only in the state or federal courts of Colorado and nowhere else.  The Parties consent to personal jurisdiction and venue in the state or federal courts of Colorado for any such dispute.