CEO Circle Referral Partner Membership Program Terms and Conditions
These Terms and Conditions (“Terms and Conditions”) are incorporated into and made a part of the Referral Partner Membership Program Agreement and the Referral Partner Associate Membership Program Agreement (“Agreement” or “Membership Agreement”) by and between ARF Financial, LLC, a California limited liability company (“ARF”) and the referral partner (“Member”) named in the Agreement.
These Terms and Conditions supersede and amend in their entirety the Referral Partner Membership Program Terms and Conditions and the Referral Partner Associate Membership Program Terms and Conditions which were previously in effect. In addition, all Associate Memberships are hereinafter now considered to be full Memberships (i.e. Associate CEO’s Circle Members are now “CEO’s Circle Members”). The Leadership Circle Member Program and Associate Leadership Member Program are being eliminated and all current Leadership Circle Members and Associate Leadership Circle Members are automatically “upgraded” to CEO’s Circle Members without the payment of any additional Network Fee until the extension of the Term of their Agreement. All references in the Referral Partner Associate Membership Agreement and the Referral Partner Associate Member Terms and Conditions to “Associate” Membership are hereby eliminated and such Associate Members are hereinafter referred to as “Members.”
1. Definitions. Capitalized terms used in the Agreement which are not otherwise defined in the Agreement and used herein shall have the meaning ascribed to them as follows:
“Advance” or “Additional Advance” means the Loan or additional Loan provided to a Borrower or Affiliated Borrowing Group. Each Advance has its own terms and amortization schedule, and the Loan Amount of each Advance or Additional Advance will be used to determine the Membership Benefits provided for herein. Advances or Additional Advances only apply to Term Loans, Flex Pay Loans and IO Flex Pay Loans. A “Redraw” under a TLRP is not considered to be an Advance for purposes of determining the Referral Fee or Residual Fees due hereunder but instead may be eligible for a fee based upon the Increment Amount and will result in a Reset of the TLRP Earn Out Fee as provided in Section 6(e) below.
“Affiliated Borrowing Group” means all loans to any group of borrowing entities that share common ownership or guarantors.
“Agreement” or “Member Agreement” means the Referral Partner Membership Program Agreement entered into between Member and ARF and includes these Terms and Conditions.
“Annual Renewal Fee” shall mean $1000 for CEO’s Circle Members, except as provided herein. The Annual Renewal Fee shall be due in on each extension of the Term of this Agreement. The Annual Renewal Fee shall be due on extension of the Term. The Annual Renewal Fee is nonrefundable in the event the Agreement is terminated by Member or as a result of Member’s material default of the terms of this Agreement. The Leadership Circle Member Program is hereby eliminated. Leadership Circle Members have been automatically upgraded to CEO’s Circle Members for the applicable remaining Term as provided herein.
“ARF Rep” means the ARF Sales Representative that has been designated and assigned to Member in accordance with the Agreement and these Terms and Conditions.
“Borrower(s)” or “Merchant(s)” means a Referral that has a Loan funded under this Agreement.
“Cash Out” means the amount of funds provided to a Borrower for a Term Loan, Flex Pay Loan or IO Flex Pay Loan less the loan proceeds used to pay off an existing Loan. The term Cash Out does not apply to a Redraw of a TLRP during the Revolving Period of the TLRP.
“CEO’s Circle Member” means the Member that has joined the CEO’s Circle Member Program and has entered into this Agreement as a CEO’s Circle Member.
“COI” means the “Circle of Influence” Member Programs established under the Agreement and these Terms and Conditions.
“COI Override Fee” means the fee which will be earned by a CEO’s Circle Member for Referrals on Loans made by such Member’s COI Network who are CEO’s Circle Members as set forth in the Agreement. No COI Override Fee will be earned for Loans funded for Referrals from COI Members who are Founding Circle Members. COI Override Fees are only paid on Renewals for so long as the Member remains in good standing as a CEO’s Circle Member (i.e., has paid their Network Fee and Annual Renewal Fee and is otherwise in compliance with the terms of this Agreement).
“COI Member Agreement” means a Member Agreement that has been entered into by a COI Member of Member and such COI Member has joined the Member’s COI Network at any Membership level.
“COI Member” means a referral partner that is exclusively recruited by Member, has joined as a COI Member and has signed a COI Member Agreement designating Member as its COI Network Leader.
“COI Network” means all COI Members of a COI Network Leader who are in “good standing” as a COI Member (i.e., have paid and are current on their Membership Fees, as applicable, and are in compliance with the terms of their COI Member Agreement). Member’s COI Network only include COI Members who Member has recruited to Member’s COI Network and who have joined as a Member and signed a COI Member Agreement referencing Member as the COI Network Leader and have paid the Network Fee and the Membership Fees and are in good standing. COI Members of Member may have their own COI Network and be an COI Network Leader. Member shall receive no Membership Benefits associated with such COI Member’s COI Network.
“COI Network Leader” is the Member that is referenced in a Validated COI Member Agreement as the COI Network Leader to such COI Member.
“COR” means the “Circle of Rewards” fees and bonuses paid under the Member Benefits established under this Agreement and these Terms and Conditions.
“COR Performance Bonus” means a volume incentive measured on a calendar year basis of $5,000 per $500,000 in Loans originated as Referrals from a Member up to a total of $2,500,000 or an aggregate COR Performance Bonus of $25,000. The COR Performance Bonus period commences on the Validation Date and resets on January 1 of each year during the term of this Agreement. Referrals included in the COR Performance Bonus are only Referrals directly made by Member and do not include Referrals made by Member’s COI Network.
“COR Network Bonus” means the sum of $5,000 for every 50 COI Members who have entered into COI Member Agreements listing Member as their COI Network Leader and who have been Validated by ARF and are active and in good standing in the CEO’s Circle Member Program. If any COI Members are not in good standing (i.e., are current on their Membership Fees and are in compliance with the terms of their COI Member Agreement), they shall not be counted for purposes of the COR Network Bonus. COI Members who have joined Member’s COI Network as a Founding Circle Member after January 1, 2022, shall not be counted towards the COR Network Bonus.
“Extended Term” means the Extended Term of a Flex Pay Loan, or an IO Flex Pay Loan as provided in the Merchant Agreement with the Merchant.
“Fees” means collectively the Referral Fees, Residual Fees and TLRP Earn Out Fees subject to the qualification requirements as set forth herein.
“Flex Pay Loan” means a loan with amortizing weekly payments that provides for an Initial Term consisting of a number of weeks and an Extended Term consisting of a number of weeks if the Merchant elects to not pay off the Loan during the Initial Term.
“Founding Circle Member” means the Member that has entered into this Agreement as a Founding Circle Member.
“Highest Advance” is the highest Loan Amount made during the Revolving Period of a TLRP as further described in Section 6(e) below.
“Increment Amount” is the difference between the Highest Advance made during the Revolving Period of a TLRP and the previous Highest Advance made during the Revolving Period under a TLRP as provided in Section 6 (e).
“Initial Term” means the Initial Term of a Flex Pay Loan, or an IO Flex Pay Loan as provided in the Merchant Agreement with the Merchant.
“IO Flex Pay Loan” means a loan with an Initial Term consisting of a number of weeks of “interest only” payments and an Extended Term consisting of a number of weeks of amortizing (“principal and interest”) weekly payments if the Merchant elects to not pay off the Loan during the Initial Term.
“Lender(s)” has the meaning as set forth in the Agreement.
“Lending Services” has the meaning as set forth in the Agreement.
“Loan” means a loan funded to a Borrower or Affiliated Borrowing Group, including a Renewal, either directly by ARF or an affiliate of ARF or through ARF’s Lending Services for Loans made by ARF’s partner Banks, based upon a Referral made by Member after the Validation Date.
“Loan Amount” means the principal amount of a Loan made to a Borrower or Affiliated Borrowing Group but in case of an Advance or a Renewal, only the Cash Out portion is included for purposes of determining the Membership Benefits. This definition of Loan Amount does not apply to TLRPs and for purposes of determining the Referral Fees and TLRP Earn Out Fees on TLRPs which is provided in Section 6(e) below.
“Loan Products” means the specific types of Loans offered by ARF and in connection with its Lending Services which include Term Loans, Flex Pay Loans, IO Flex Pay Loans and TLRPs.
“Marketing Services” means collectively the Member Landing Page, Member URL, Member Application Registration Page, and Product Flyers which are applicable to the Membership Benefits which Member has elected to participate in under the Agreement.
“Member Application Registration Page” means the ARF loan application web page that will be “linked” to the Member via either the Member URL or the Member Landing Page for all Referrals who complete the loan application/registration from such web page.
“Member Benefits” or “Membership Benefits” means collectively the Referral Fees, the Residual Fees, the COI Override Fee, COR Network Bonus, Share of COI Network Fee, COR Performance Bonus and Marketing Services which Member will receive for being a CEO’s Circle Member. If Member fails to pay the Membership Fees within 10 days of their due date or has been notified by ARF that it is no longer in compliance with the terms of the Agreement, Member shall no longer be entitled to the applicable Membership Benefits and shall instead participate as a Founding Circle Member for all Membership Benefits and Marketing Services. If Member’s non-compliance is as a result of a material breach of this Agreement, Member may be terminated in which case Member shall receive no future Membership Benefits, including but not limited to Residual Fees.
“Member Fee(s)” or “Membership Fee(s)” means collectively, the Network Fee and the Annual Renewal Fee required to be paid by Member in exchange for the Membership Benefits and Marketing Services associated with the applicable Member Program which Member has elected in the Agreement. For the purpose of determining if a COI Member of Member is in good standing and counted as a COI Member, the “Member Fee(s)” or “Membership Fee(s)” also refers to the Network Fee and the Annual Renewal Fee as described in the COI Member’s Membership Agreement.
“Member Landing Page” shall mean a unique web page which will be “co-branded” to Member and ARF and which may be utilized by Member Referrals to register as a “merchant” and apply for a Loan. Prospective merchants who register through the Member Landing Page and apply for a loan will be considered to be Member Referrals subject to the qualification requirements set forth in the Agreement. The Member Landing Page will be owned by ARF and be on a standard template that will contain Members general information, tradename and trademarks but any further customization shall be approved by ARF at its sole discretion.
“Member URL” shall mean a unique “URL” providing an identifier link to ARF’s merchant and loan application portal which will identify the merchant as a Member Referral after the merchant completes the registration and application for a Loan.
“Member Program” means either the CEO’s Circle Member Program or the Founding Circle Member Program which Member has joined and is applicable to the Member pursuant to the terms of the Agreement and these Terms and Conditions.
“Merchant Agreement” means the loan agreement entered into with a Borrower and any amendments thereto covering Additional Advances and Renewals and any amendments in connection with a TLRP.
“Network Fee” shall mean the initial Membership Fee to be paid by Member for participation as a CEO’s Circle Member which is due upon execution of the Agreement in the amount set forth in the Agreement for the applicable Member Program agreed to by the Member, i.e., $1,000 for CEO’s Circle Members, less any promotional discounts offered by ARF for new CEO’s Circle Members or Founding Circle Members who elect to convert to CEO’s Circle Membership. The Network Fee will either be debited from Member’s Bank Account or charged to Member’s Credit Card Account as authorized and provided in the Agreement. The Network Fee is nonrefundable in the event that this Agreement is terminated by Member or due to a material default by Member and is fully earned when paid to ARF.
“Pay Down” means the making a principal payment which is in addition to the principal portion of the weekly payments due under a TLRP during the Revolving Period of the TLRP.
“Product Flyers” shall mean a one page marketing slick approved by ARF that will be Co-Branded with ARF and CEO’s Circle Members and provided to Member to support its marketing efforts under this Agreement.
“Redraw” means where the Merchant has received an Additional Advance under a TLRP during the Revolving Period and has entered into an amendment to the Merchant Agreement.
“Reset” means the occurrence of a Pay Down or Redraw made on a TLRP during the Revolving Period. Each “Reset” will modify the TLRP Earn Out Fee as provided in Section 6(e) below.
“Referral” has the meaning as defined in Section 3 below.
“Referral Fee” means the applicable percentage of Loan Amount which Member will receive based upon the applicable Membership Benefits which Member has elected to participate in under this Agreement based upon Referrals made by Member which result in funded Loans as more particularly described in these Terms and Conditions.
“Renewals” has the meaning as defined in Section 6 below.
“Residual Fee” means the applicable percentage of Loan Amount which Member will receive based upon the applicable Membership Benefits which Member has elected to participate in under this Agreement based upon Renewals of Loans funded for Referrals made by Member which result in funded Loans as more particularly described in these Terms and Conditions. A Pay Down or a Redraw of a TLRP during the Revolving Period is not considered to be a Renewal for purposes of determining Residual Fees but instead will receive TLRP Earn out Fees and a fee on the Increment Amount, if applicable, as provided in Section 6(e) below. Residual Fees are paid on Renewals for so long as the Member is in good standing as a CEO Circle Member (i.e., has paid their Annual Renewal Fee and is otherwise in compliance with the terms of the Agreement).
“RNCO” means an amendment to the Borrower Loan at the request of the Borrower that involves modification or extension of the payment terms where no additional “cash out” is being paid directly to the Borrower in connection with such amendment.
“Share of COI Network Fee” means 50% of the Network Fee paid by a COI Member who is in Member’s COI Network. Member will receive its Share of COI Network Fee paid to ARF on the 15th day of the month following the month of such COI Member’s becoming a COI Member and payment of the initial Network Fee. A Member shall also receive a Share of COI Network Fee for a COI Member who is part of Member’s COI Network who “upgrades” from a Founding Circle Member to a CEO’s Circle Member. Notwithstanding anything contained herein to the contrary, if the COI Member has an agreement with ARF to pay a discounted Network Fee based upon such COI Member’s affiliation with another membership group or otherwise, the Share of COI Network Fee for such COI Member shall be 0%. A Member shall receive no portion of the Annual Renewal Fee paid by Members who are part of such Member’s COI Network.
“Term” and “Initial Term” shall have the meaning set forth in Section 11 of the Terms and Conditions.
“Term Loan” means a Loan with a fixed number of weeks of amortizing (principal and interest) loan payments and is not a Flex Pay Loan, IO Flex Pay Loan or TLRP.
“TLRP” means a Term Loan with a “Revolving Period” during which time a Merchant can Pay Down the Loan and Redraw the Loan up to its approved Loan Amount.
“TLRP Earn Out Fee” or “Earn Out Fee” shall mean the Fee due to Member for referral of a Merchant that enters into a TLRP as provided in Section 6(e) herein. The TLRP Earn Out Fee will be Reset upon each Pay Down and Redraw made under a TLRP during the Revolving Period as provided in Section 6(e) below.
“Validation” or “Validated” shall mean ARF’s approval of Member or a COI Member as an “Member” under an applicable Member Program in its sole and complete discretion based upon such Member providing all required information in the Agreement and ARF validating the same as being accurate and payment of all applicable Network Fees and confirmation that a Member is not already a Member or is in another Member’s COI Network. ARF may perform public records background checks on prospective Members to determine their business and personal reputation and may reject or terminate the Membership of any Member in the event that the Member’s personal or business reputation is not in keeping with ARF’s standards or the Member has committed or been accused of fraudulent, dishonest or criminal conduct in ARF’s sole and complete discretion.
“Validation Date” shall mean that date that ARF completes the Validation and executes this Agreement as set forth herein.
2. Membership Benefits Not Applicable to Referrals Made Prior to this Agreement.
The Agreement supersedes and amends any previous referral partner agreement entered into between ARF and Member. The applicable Membership Benefits set forth in this Agreement (including but not limited to the Referral Fees and Residual Fees) are only applicable to Referrals of new Borrowers made after the Validation Date and shall not apply to Borrowers or Affiliated Borrowing Groups that were previously referred by Member under a previous referral agreement with ARF. All Referrals of Borrowers or Affiliated Borrowing Groups under a prior referral agreement will be treated as Founding Circle Member Referrals for determination of the Membership Benefits.
3. Marketing of Loans; Lending Services; Referral’s To ARF.
Member agrees to work with the ARF representative that ARF designated from time to time in promoting and marketing Loans to be made by either ARF or Lenders through ARF’s Lending Services. Such promotion and marketing shall consist of informing the prospective Borrower of the availability of Loans and through use of the Marketing Services applicable to the Member Program which Member has elected. In connection therewith, Member may provide to a prospective Borrower any brochures or advertising material which ARF has provided to Member for such purpose. If Member proposes to utilize promotional materials or media in any form that have not been previously approved in writing by ARF or provided by ARF, Member shall first submit such materials and/or media to ARF for its review and prior written approval. If a prospective Borrower, or Affiliated Borrowing Group, indicates interest in a Loan and Loan Products (i.e. it has a need for funding within 90 days) and requests that it be contacted by an ARF Rep, Member agrees to provide to ARF, through its designated ARF Rep, the name, address, email address and phone number of the prospective Borrower via email or by phone to the designated ARF Rep for such purpose or such referral can be made and attributed to Member through the prospective Borrower’s registration with ARF via the Member URL, Member Landing Page or the Member Application Registration Page (“Referral”). A “Referral” shall not be attributed to Member as a “Referral” until a completed registration and loan application is made by the Merchant with Member as the source. Member acknowledges that this “first in time” requirement is necessary as prospective Borrowers, or Affiliated Borrowing Groups, may be working with other Members and/or ARF Reps concurrently or may come to ARF through prospective Borrower’s web searches and other ARF marketing efforts. ARF will use commercially reasonable efforts to track Referrals through its website and merchant portal for proper attribution, however, ARF’s determination of such “attribution” for a Referral from a Member shall be final and binding on the Member. Member shall not make any representations to the prospective Borrower as to the likelihood of approval for a Loan, the amount of financing or any prospective loan rates or terms other than as approved by ARF in writing. Member acknowledges that in certain states, if Member provides to a prospective Borrower a verbal or written quote, it is obligated to provide additional disclosures relating to the cost and terms of the financing. Therefore, any specific quote relating to ARF’s Loan Products must be made by ARF directly to the prospective Borrower. Member shall not accept or take any application for a Loan from such prospective Merchant borrower or any other information for such purpose from the prospective Merchant borrower other than the contact information as referenced herein. Member has no authority to bind ARF or any Lender in connection with its marketing and promotion services contemplated herein. Upon Validation of the Agreement, Member will be assigned an ARF Rep to work with directly to discuss prospective Referrals. If Member has been introduced to ARF by an ARF Rep as listed in the Agreement, the ARF Rep will be Member’s designated “ARF Rep” for purposes of this Agreement. ARF may change the designated ARF Rep at any time in its sole discretion. Member shall, along with its agents and employees, conduct itself in a professional manner consistent with first class industry standards, at all times in representing ARF, its Loan Products and Lending Services. Any Member that has been accused of or committed an act of fraud, dishonesty or criminal conduct may be terminated as a Member by ARF immediately in its sole and complete discretion.
4. Marketing Services.
ARF shall provide to Member the Member URL, Member Landing Page, Member Application Registration Page and the Product Flyers based upon the Program level which Member has elected. The Product Flyers shall be provided to Member in digital form for Member to distribute via email or other medium at its discretion.
5. Membership Fees; COI Network.
If Member has elected to join a Member Program that requires Membership Fees (i.e., CEO’s Circle Member Program, Member acknowledges that it is making a commitment to pay the Membership Fees on a timely basis. In consideration for continuation of the Membership Benefits for each extended Term, Member will make timely payment of the Annual Renewal Fee. The Annual Renewal Fee for CEO Circle Members (including Leadership Circle Members who have been “upgraded” to CEO’s Circle Members) shall be due upon extension of the Term of the Agreement as set forth herein. If Member has previously entered into an addendum to the Agreement which provided for a discount of the Network Fee based upon Member being an affiliate of a professional training program or other group, the Annual Renewal Fee for such Member shall be one-half of the Annual Renewal Fee set forth in this Agreement. For purposes of determining the Membership Benefits, employees or subagents of Member or a COI Member are not considered to be in a Member’s COI Network unless they separately sign a COI Member Agreement and pay the applicable Network Fees associated with the Member Program selected. After the Initial Term, if Member elects not to continue at an elevated level by paying its Annual Renewal Fee, Member shall continue as a Founding Circle Member, and Member shall no longer receive a COI Override Fee, Share of COI Network Fee, COR Performance Bonus and its Referral Fees, Residual Fees and Marketing Services shall be reduced to the Founding Circle Member level. If Member fails to pay the Annual Renewal Fee in a timely manner upon each renewal of the Term of this Agreement, then Member’s Membership Benefits shall be reduced to the Founding Circle Membership Benefits including but not limited to all future Referral Fees and Residual Fees after the date of nonpayment. Except as provided above, Member will receive the Referral Fees and Residual Fees earned corresponding to the applicable Member Program as provided in the Agreement and these Terms and Conditions. Member will be given 10 calendar days (from the date such payment was due) to cure a non-payment before the reduction of Membership level goes into effect. However, Member may be “reinstated” to their prior Member Program level if within 30 calendar days of the date their payment was due, Member pays to ARF an amount equal to 25% of its Annual Renewal Fee as a “Reinstatement Fee” along with any past due Annual Renewal Fee, its status and Membership Benefits will be restored in full for the balance of the applicable Term. So long as Member remains in good standing as a CEO’s Circle Member, Member will be entitled to receive the COI Override Fee, Share of COI Network Fee, COR Network Bonus, and COR Performance Bonus earned for COI Members that have been recruited by Member in the Member’s COI Network. If a Member “opts out” of the CEO’s Circle Member Program at the end of the Initial Term or any time thereafter or fails to pay its Annual Renewal Fee when due (and is not reinstated as provided above), then Member shall become a Founding Circle Member and receive only the Founding Circle Member Benefits going forward for all purposes, including but not limited to having all Referral Fees and Residual Fees for prior Referrals paid at the Founding Circle Member Benefits level. If Member then elects to rejoin as a CEO’s Circle Member, only new Referrals and new COI Members added (after the date of Validation of the new Agreement) will be counted for determination of the Member Benefits under the new Agreement.
6. Referral Fees; Residual Fees and COI Override Fees; Referral Fees and Residual Fees on Term Loans, Flex Pay and IO Flex Pay Loans; Referral Fees and TLRP Earn Out Fees on TLRPs.
(a) Referral Fees will be paid (i) based upon the Loan Amount of the initial Loan made and (ii) the Cash Out portion of all Additional Advances, including line of credit draws, renewals, or re-financings (collectively, “Renewals”). Residual Fees will also be paid on Renewals made to the referred Merchant for so long as the Member is an active CEO Circle Member and will be based upon the Cash Out portion of each Renewal. A Redraw of a TLRP made during the Revolving Period is not considered a Renewal but instead will earn Referral Fees and TLRP Earn Out Fees as described in Section 6(e) below. After the expiration of the Revolving Period of a TLRP, any Advance or refinancing of the TLRP will be considered a Renewal and the Member will earn the Residual Fees and TLRP Earn Out Fees as described in Section 6(e) below. Residual Fees (and COI Override Fees associated with such Renewal to the COI Network Leader) for any Loan Product shall be paid for so long as the Member remains in good standing as a CEO Circle Member (i.e. has paid their Annual Renewal Fee and is otherwise in compliance with the terms of the Agreement). The Residual Fees and TLRP Earn Out Fees shall be subject to the same qualification requirements as those that apply to Referral Fees as set forth herein and in Section 9 below.
(b) The Membership Benefits (i.e. Referral Fees and Residual Fees) for Term Loans are as follows: (i) for CEO’s Circle Members (x) for terms equal to or greater than 39 Weeks, 8% on Loan Funding, (y) for terms less than 39 Weeks, 3% on Loan Funding, and (ii) for Founding Circle Members (x) for terms equal to or greater than 39 Weeks, 3% on Loan Funding, (y) for terms less than 39 Weeks, 1.5% on Loan Funding.
(c) The Membership Benefits (i.e. Referral Fees and Residual Fees) for Flex Pay Loans are as follows: (i) for CEO’s Circle Members (x) for Initial Terms equal to or greater than 39 Weeks, 8% on Loan Funding, (y) for Initial Terms less than 39 Weeks, 3% on Loan Funding, and (ii) for Founding Circle Members (x) for terms equal to or greater than 39 Weeks, 3% on Loan Funding, (y) for terms less than 39 Weeks, 1.5% on Loan Funding.
(d) The Membership Benefits (i.e. Referral Fees and Residual Fees) for IO Flex Pay Loans are as follows: (i) for CEO’s Circle Members, 4% on Loan funding and 4% on “Rollover” to a fully amortizing loan, and (ii) for Founding Circle Members, 3% on Loan funding and 0% on “Rollover” to a fully amortizing loan. For example, for a CEO’s Circle Member Referral of a Loan on a 39/78 Week IO Flex Pay Loan (39 Week Initial Term of Interest Only Payments and 78 additional Weeks Extended Term of amortizing payments), if the principal is not paid in Week 39 of the Initial Term, the Member will earn 4% on Loan funding and 4% upon “roll-over” of the Loan to the Extended Term.
(e) The Membership Benefits (i.e. Referral Fees and Residual Fees) for TLRPs are as follows: (i) for CEO’s Circle Members, (x) 4% on Loan funding, (y) on a Redraw, 4% of the Increment Amount (i.e. the difference between the Highest Advance and the previous Highest Advance made during the Revolving Period), and (z) a 4% TLRP Earn Out Fee, and (ii) for Founding Circle Members, (x) 3% on Loan funding, (y) on a Redraw, 3% of the Incremental Amount (i.e,. the difference between the Highest Advance and the previous Highest Advance made during the Revolving Period), and (z) a 0% TLRP Earn Out Fee. The TLRP Earn Out Fee will be based upon the then applicable Loan Amount prior to any Pay Down or Redraw, and shall be paid in 12 monthly installments commencing on the 15th day of the month following the month of the Loan funding, and will be Reset on each Pay Down and Redraw made during the Revolving Period. The determination of the Loan Amount shall not take into account regular payments of principal made as part of a Weekly Payment but only Pay Downs and Redraws. For example, based upon a $100,000 Loan funded for a Referral made by a CEO Circle Member, the TLRP Earn Out Fee will initial be $4,000 and paid out in 12 equal monthly installments of $333.34 per month. However, if there is a Pay Down of the Loan of $50,000 made during the Revolving Period, the TLRP Earn Out Fee will be Reset to $2,000 (i.e. 4% of the remaining $50,000 Loan Amount after the $50,000 Pay Down) and the 12 month pay out period will be restarted and the Member will receive $166.67 per month as the TLRP Earn Out Fee for 12 months. If however, there is a Redraw of $50,000 made during the Revolving Period bringing the Loan Amount back up to $100,000, the TLRP Earn Out will be readjusted to $4,000 and paid over a 12 monthly installments of $333.34 until it is paid in full unless there is another Reset. If however, there is a Pay Down that results in a full pay off of the Loan Amount during the Revolving Period, no further TLRP Earn Out Fee will be due as 4% of $0 is $0. The payment of any fees under a TLRP Loan is subject to the same qualification requirements as provided in Section 9 below.
(f) For Loans, Advances or Renewals funded by the fifteenth (15th) day of the month, the applicable Referral Fee or Residual Fee earned will be paid by the last day of the same month. For Loans, Advances or Renewals funded after the fifteenth (15th) day of the month, the applicable Referral Fee or Residual Fee will be paid to Member within fifteen (15) calendar days of the month following the month in which the Loan (Advance or Renewal) funding occurs. TLRP Earn Out Fees will be adjusted based upon the applicable Loan Amount outstanding on the last business day of the Week and if there is a Loan Amount adjustment during a month, the Earn Out Fees will be prorated based upon the number of Weeks before and after the adjustment occurred and the Earn Out Fees will be adjusted and paid within fifteen (15) calendar days of the month following the month in which the Loan Amount has been calculated for such purpose. Fees due on the Increment Amount for Redraws will be made by the fifteenth (15th) day of the month following the month in which such Redraw occurs. The COI Override Fee, Share of COI Network Fee, COR Network Bonus and COR Performance Bonus will be paid by the fifteenth (15th) day of the month following the month in which such fees or bonuses are earned. Notwithstanding anything contained in the Agreement to the contrary, the COI Override Fee will be paid “in full” for Flex Pay and IO Flex Pay Loans on the 15th day of the month following Loan funding and will not be split. If Member has provided banking information for ACH payment, payment shall be made by ACH credit to the Member’s bank account. If no bank information has been provided, then payment shall be made by regular U.S. mail by corporate check. A completed Loan, Advance or Renewal shall be a Loan which has been approved by either ARF or the Lender on such terms and conditions, including amount, as ARF or the Lender shall approve in either ARF or the Lender’s sole and complete discretion, all Loan documentation shall have been completed to Lender’s and/or ARF’s satisfaction and executed by either ARF or the Lender and the Borrower and the Loan shall have been funded to the Borrower. No Lender shall have any liability to Member for any payment or compensation due hereunder and Member shall look solely to ARF for such payment.
7. ARF Sales Contact; Underwriting Process.
After receipt by ARF of Member’s completed Referral, the ARF Rep shall promptly make a sales call to the prospective Merchant borrower. The ARF Rep will make follow up calls as it deems appropriate within its customary practice and will use commercially reasonable and diligent efforts to assist the Prospective Borrower through the loan application and underwriting process of the Lender. If ARF is able to obtain a loan application from the prospective Borrower, there is no guarantee that the prospective Borrower will be approved for a Loan by ARF or the Lender, or otherwise complete the underwriting and loan closing process. ARF shall have the right in its sole discretion to identify an alternate ARF Rep to work with Member on referrals during the term of this Agreement.
8. Volume Incentive.
In addition to the COR Performance Bonus, ARF may from time to time announce “Volume Incentive(s”) or “Bonus Fees” to active Members from time to time in ARF’s sole discretion. Such Volume Incentives may be implemented, modified, amended or rescinded at any time in ARF’s sole discretion upon written notification provided to Member as provided herein which shall apply to all eligible referrals made after the date of the notification.
9. Qualification for Referral Compensation and Exclusions.
In order for a Loan transaction to qualify for a Referral Fee or Residual Fee (including any fees due under a TLRP Loan, e.g. TLRP Earn Out Fees) or to be counted towards any other Membership Benefit, including but not limited to COI Override Fees, COR Performance Bonus, the referral must meet the following requirements: (i) the referred prospective borrower or Affiliated Borrower Group, including any guarantors cannot be a current customer of ARF or its Lenders or have been a customer of ARF or its Lenders within the 12 month period prior to the referral, (ii) the prospective borrower or Affiliated Borrower Group or any of its guarantors, cannot have submitted a UMCA (credit application) to ARF or been referred to ARF within the previous 120 days through any other source, (iii) the prospective Borrower or Affiliated Borrowing Group cannot be covered by another referral partner agreement entitling such referral partner to compensation in connection with same (i.e. residual compensation due to another referral partner or Member), and (iv) Member shall have entered into the Agreement and the Agreement shall have been Validated at the time of the Referral and the Member shall be in good standing, i.e. have paid its Membership Fees and otherwise be in compliance with the terms of this Agreement. In the event that the Referral does not meet such criteria, Member shall be promptly notified by ARF, that the Referral does not qualify and the reasons therefore. In addition, no fee shall be paid or earned or credit given to any Membership Benefit, including but not limited to COI Override Fees, COR Performance Bonus, Referral Fees or Residual Fees, if any of the following conditions exist by the 15th day of the month following the funding of the Loan, the rollover to the Extended Term of an IO Loan or an IO Flex Pay Loan or at any time during the term of a TLRP: (i) the Merchant misses any payment (or in the case of a TLRP Earn Out Fee, the Merchant is three cumulative payments in arears) or an event of default occurs under the Merchant Agreement; (ii) the Merchant places a stop payment or revokes authorization on its automatic debit authorization; (iii) the Merchant’s bank account becomes frozen (iv) the Merchant closes their bank account; (v) the Merchant requests a RNCO; (vi) the Merchant pays off the Loan or indicates its intention to pay off the Loan by requesting an Early Payoff; (vii) the Merchant has a history of delinquent loan payments; or (viii) there is any change of ownership of the Merchant or Borrowing Entity. If the payment of Fees are disqualified due to missed loan payments as provided above, if the Merchant becomes current and no other default has occurred, these Fees will be paid and resume on the 15th day of the month following the month in which the Merchant’s payment arrearage has been cured. In order for Member to qualify for compensation under this Agreement, neither Member or any of its employees, officers or agents (a) shall be related, by blood or marriage to the ARF Rep or any current ARF employee or to an owner, manager or officer of the referred Merchant or its Affiliated Borrower Group, (b) shall have engaged in or have been accused of fraud, misrepresentation, dishonesty or deceptive practices in any civil or criminal case or proceeding, has committed a crime, or it otherwise becomes known to ARF that Member has engaged in such practices, or (c) Member shall otherwise be in compliance with its obligations, representations and warranties contained in this Agreement. Member shall not charge or accept any fee or other form of compensation from a Merchant in connection with the referral by Member of such Merchant to ARF. Member warrants and represents that its sole and exclusive form of compensation shall be limited to the Membership Benefits paid by ARF as contemplated herein. Member further represents and warrants that it was the sole source of the referral and that there shall be no compensation or fee sharing or other financial or business relationship between Member, the ARF Rep, or any third party, it being agreed and understood that any such collusive actions or any breach of any obligation, warranty or representation shall violate the terms of this Agreement and void any obligation on behalf of ARF to pay compensation and ARF shall have the right to recoup any Membership Benefit paid to Member in connection with such collusive conduct or breach. Member shall hold ARF harmless for any claim for compensation or fee payable to any employee, independent contractor or third party which Member has dealt with in connection with the referral of the Merchant. Prior to payment of the Membership Benefit, ARF may audit the referral transaction to determine that the terms of compensation have been satisfied.
The payment of all Membership Benefit fees and bonuses shall be made by ACH debit to the Member account based upon the information provided by the Member in this Agreement, unless another method of payment is agreed to by ARF and Member in writing. Member agrees that the nature of its services and fee compensation hereunder is that of an independent contractor and not as an employee. ARF shall provide to Member a bi-monthly report of Loans, Advances and Renewals made from Member Referrals which will include the pertinent merchant loan information and the aggregate volume on a Month-to-Date and Year-to-Date basis and Loans and Renewals relating to Member’s COI Network (without disclosing confidential information relating to the COI Member’s Referrals), but ARF shall not be obligated to provide any reporting if there are no Loans that have been funded and are outstanding from Member Referrals or it COI Network in that calendar year.
As to CEO’s Circle Members who have become Members prior to May 1, 2021, the “Initial Term” of this Agreement shall commence on the Validation Date and end on December 31, 2022. As to CEO’s Circle Member’s, and Associate CEO’s Circle Members who became Member’s after May 1, 2021, their “Initial Term” shall expire on their one year anniversary of their Validation Date. As to Leadership Circle Members that became Members in 2021, and are being upgraded to CEO’s Circle Members as provided herein, their “Initial Term” shall expire on December 31, 2022 and they will need to renew as a CEO’s Circle Member on or before that date. As to Associate Leadership Circle Members that became Members in 2022, and are being upgraded to CEO’s Circle Members as provided herein, their “Initial Term” shall expire on their one year anniversary date of their Validation Date and they will need to renew as a CEO’s Circle Member on or before that date. As to Founding Circle Members, the initial term of this Agreement shall be the one (1) year anniversary of the Validation Date. The initial term shall extend automatically for successive one (1) year terms (extended “Term”) unless either party has provided written notice of its election not to extend the term of this Agreement prior to the effective date of such automatic extensions. This Agreement may be terminated by not less than thirty (30) calendar days prior written notice given by any party. The termination of this Agreement by Member shall result in the reduction of the Residual Fees to the level due to the Founding Circle Members for the remaining term during which such Residual Fees are required to be paid. Termination of this Agreement by ARF “for cause” due to Member’s breach of a material covenant of this Agreement shall result in cancellation of all future Residual Fees and there shall be no refund of the Network Fee or Annual Renewal Fee. Except for termination by ARF for cause, the fees payable hereunder shall also be payable by ARF to Member for all referrals received by ARF from Member prior to the termination of this Agreement for all completed Loans within the same month of termination as provided above. Residual Fees will continue to be paid so long as Member remains in good standing as a CEO’s Circle Member. If ARF elects to discontinue the CEO’s Circle Membership Program, Residual Fees will continue to be paid for the life of the Merchant’s relationship with ARF. If Member does not continue as a CEO’s Circle Member and becomes a Founding Circle Member and this Agreement is terminated for any reason by ARF other than “for cause,” Residual Fees will continue to be paid for three (3) years from the date of the initial Loan advance to a Merchant.
This Agreement is deemed to be entered into in the State of Florida and governed by the laws of the State of Florida. Member consents to the jurisdiction of the courts of the County of Broward or Dade, State of Florida or the federal courts of district in which ARF’s principal office is located in Florida for the resolution of any or all disputes or claims arising out of and/or related to this Agreement.
13. Contact Information.
Member agrees to notify ARF of any changes in its contact information. Member hereby authorizes and consents to being contacted by mobile phone, text or email by ARF or its representatives at the Member’s contact information as provided above or hereinafter provided by Member.
14. Proprietary Information; Confidentiality.
Member acknowledges and agrees that ARF has expended great time and effort in developing its Lending Services and Loan Products. ARF now owns and will develop, compile and own certain proprietary techniques, trade secrets, and confidential information which have great value in its business and which ARF takes measures to protect from unauthorized use or disclosure (collectively, ARF Proprietary Information). ARF will be disclosing ARF Proprietary Information to Member during Member’s performance under this Agreement. ARF Proprietary Information includes not only information disclosed by ARF but also information developed or learned by Member during Member’s performance. ARF Proprietary Information is broadly defined and includes all information which has or could have commercial value or other utility in the business in which ARF is engaged or contemplates engaging or the unauthorized disclosure of which could be detrimental to the interests of ARF whether or not such information is identified by ARF. By way of example and without limitation, ARF Proprietary Information includes all customer lists, Lead lists, agent lists, data, printed and written material, application forms, contracts and other information furnished by ARF to Member. Member’s use of ARF Proprietary Information is limited to the purpose of performing Member’s obligations to ARF during the term of this Agreement. Member shall not disclose any ARF Proprietary Information to any other person or entity. Member’s obligations under this Section shall survive termination of this Agreement and for a period of three (3) years. Member agrees that upon the expiration or termination of this Agreement, all of ARF’s Proprietary Information in Member’s possession will be returned to ARF within thirty (30) days of such expiration or termination. In the event that Member becomes legally compelled to disclose any information, Member will provide ARF with prompt written notice so that ARF may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. Member is cognizant and understands that ARF could be irreparably harmed or sustain damages for which monetary remedies are insufficient if ARF Proprietary Information is misused or disclosed in violation of this Agreement and ARF may seek injunctive or other equitable relief in connection therewith. Member shall be responsible for all costs including attorney fees and court costs relating to the enforcement of this Section.
15. Compliance with Laws.
Member shall, at its own expense, comply with all applicable laws, regulations, ordinances, rules, and orders of governmental authorities, including, without limitation, compliance with the Telephone Consumer Protection Act and all federal, state and local laws relating to advertising, marketing, sales and commercial finance disclosure laws.
16. Trademarks; Trade Names.
During the term of this Agreement, Member shall have a limited, revocable, non-exclusive and non-assignable right to advertise Lending Services using the trademarks, service marks, logos, designs and trade names that ARF may adopt from time to time (collectively, the “ARF Trademarks”) solely in connection with Member’s performance under this Agreement. Nothing herein shall grant Member any right, title, or interest in the ARF Trademarks other than the limited right set forth in this Section. The use of the ARF’s Trademarks by Member shall first be submitted to ARF for approval (which shall not be unreasonably withheld) of design, color, and other details or shall be exact copies of those used by ARF and in conformity with ARF’s guidelines provided to Member. ARF shall have a limited, revocable, non-exclusive and non-assignable right to use of Member’s trademarks, service marks, logos, designs, trade names and likeness for purpose of performing the Marketing Services as provided herein.
17. Material Default.
Member’s election or failure to pay the Membership Fees as set forth herein, shall not constitute a material default under this Agreement but shall result in the loss of Member’s Membership Benefits except that Member shall continue to be entitled to the Membership Benefits of a Founding Circle Member. A “material default” of the Agreement and Terms and Conditions shall include but not be limited to a breach by Member of Sections 3, 9, 14, 15 and 16 contained herein. The occurrence of a material default shall not be subject to notice and cure and in such event, ARF may elect to immediately terminate this Agreement by written notice to Member and Member shall no longer be entitled to receive any Membership Benefits, including without limitation, any Referral Fees or Residual Fees, or COI Network fees. ARF shall also have the right to pursue any claim or remedy for damages caused as a result of such breach as permitted by law.
18. General Provisions.
(a) Member shall not assign in whole or in part its rights or obligations under this Agreement without the express written consent of ARF. This Agreement shall be binding upon and shall inure to the benefit of each party’s successors and permitted assigns.
(b) The Agreement including the Terms and Conditions, embodies the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements, arrangements and understandings relating to the matters provided for herein. Except for changes to the Terms and Conditions by ARF as provided in the Agreement, no alteration, waiver, amendment, change or supplement hereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party.
(c) For the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto. Each such counterpart shall be, and shall be deemed to be, an original instrument, and all such counterparts taken together shall constitute one and the same agreement. Notices permitted or required under this Agreement may be given by overnight courier (and shall be deemed delivered one day after they are sent) or by email (and shall be deemed delivered when sent) at the physical and email address of Member and ARF listed in the Agreement.
(d) Each person executing this Agreement on behalf of a party represents that it has the legal capacity to enter into this Agreement on behalf of such party and upon its execution hereof, this Agreement is a legally enforceable and binding obligation of such party. The execution of the Agreement shall constitute agreement and acceptance of these Terms and Conditions which are incorporated into the Agreement in full and without the need for separate signature or execution of these Terms and Conditions.
(e) In its marketing of ARF’s Lending Services, Member shall not: (i) represent itself as acting in any other capacity than as an independent contractor of ARF; (ii) hold itself out as an employee or agent of ARF; (iii) conduct itself in any manner that infers or implies that Member is part of ARF or has the ability to bind ARF or its Bank partners or that could be considered to be confusing or misleading as to the nature of Member’s relationship with ARF as an independent contractor and Referral source only.