THIS AGREEMENT SHALL NOT CONSTITUTE A NEGOTIABLE INSTRUMENT.
This Agreement is entered into by and between the Merchant and Provider. As used in this Agreement, the term “Provider” also shall include Provider’s agents, servicers and any assignee of this Agreement. “Customer” means clients of Merchant who wish to purchase goods or services using financing made available through Merchant and Provider. Each of Provider and Merchant are, from time to time, individually referred to herein as a “Party,” and collectively as the “Parties.” The “Effective Date” is the date on which Merchant becomes bound by this Agreement.
ㅤㅤ(a) Services Generally. Subject to the terms and conditions of this Agreement, Provider may arrange for and make available to Merchant’s customers (“Customers”) financing services to satisfy the payment obligations arising from the purchase of goods and services by customers at Merchant (the “Financing Services”). Provider may make the Financing Services available by either entering into a program agreement with a lender (a “Designated Lender”) or by extending financing itself, in its sole discretion. The terms of the Financing Services will be established solely by Provider and/or the Designated Lender and may be amended at their sole discretion. As between Provider and Merchant, Provider is responsible for the performance of any Designated Lender. Financing Services are to be promoted, marketed, and used by Merchant solely for the purpose of permitting Customers to satisfy their payment obligations to Merchant in connection with the purchase of goods and services from Merchant. Merchant shall not use, resell or otherwise make available the Financing Services for any purpose except as expressly set forth in this Agreement. Without limiting any right or remedy in this Agreement, in consideration for providing the Financing Services to Customers, Merchant shall pay a monthly fee to Provider as set forth in Exhibit A or as otherwise communicated to Merchant.
ㅤㅤ(b) Pre-Qualification of Customers. During the term of this Agreement, upon mutual agreement by both Provider and Merchant (each in their sole discretion) to provide such services, Merchant may request that Provider obtain a pre-qualification for a Customer in order to determine whether such Customer qualifies to receive the Financing Services (“Pre-Qualification”). In connection with any request for Pre-Qualification, Merchant shall deliver to Provider, in writing or by an agreed upon electronic transmission, such information relating to a Customer as is reasonably required by Provider or Designated Lender to obtain a pre-qualification for such Customer for receipt of the Financing Services (the “Pre-Qualification Information”). Upon receipt of proper and complete Pre-Qualification Information for a Customer, Provider and/or the Designated Lender shall promptly review such information to determine whether such Customer can receive Pre-Qualification, which determination shall be made (as the case may be) in Provider’s or the Designated Lender’s sole and absolute discretion. Upon completion of the review and determination, Provider shall notify Merchant of such determination. If a Customer receives Pre-Qualification (a “Pre-Qualified Customer”), Merchant agrees to notify Customer of Pre-Qualification and offer Financing Services to the Customer in accordance with the provisions of Section 1(c) below. Provider retains the right to notify any Customer of its Pre-Qualification status at Provider’s discretion.
ㅤㅤ(c) Access to Financing Services by Customers. Merchant will use the materials provided by Provider when offering Financing Services to Customers or materials that Provider has approved in its sole discretion. Merchant will not use any other materials when offering Financing Services unless it first submits those materials to Provider, and it will cease using any materials upon Provider’s request. Merchant shall comply with all guidelines, bulletins, notices, and similar instructions regarding the Financing Services that have been provided to Merchant. Customers will only have the right to access and use the Financing Services to satisfy payment obligations to Merchant arising from goods or services purchased by Customer from Merchant. Merchant shall direct any Pre-Qualified Customer that accepts the offer of Financing Services to a website designated by Provider (currently, www.getflexpoint.com), where such Pre-Qualified Customers shall be permitted to apply for the Financing Services. Provider and/or the Designated Lender, as the case may be, shall promptly review requests for the Financing Services submitted by Pre-Qualified Customers. In order to be eligible to receive the Financing Services, Pre-Qualified Customers shall be required to submit such additional information (collectively, with Pre-Qualification Information, “Customer Data”) as is required and communicated by the Designated Lender and/or Provider. Designated Lender or Provider shall promptly review all Customer Data for such Pre-Qualified Customer to determine whether such Customer is eligible to receive the Financing Services, which determination shall be made in their sole and absolute discretion. Upon completing its review and determination, Pre-Qualified Customers that are determined to be eligible to receive the Financing Services (“Approved Customers”) may receive the Financing Services pursuant to the applicable terms and conditions described on Provider’s website. Provider shall promptly notify Merchant of any Approved Customers that properly apply for and accept the Financing Services (“Enrolled Customers”).
ㅤㅤ(d) Software Access to Financing Services. Upon mutual agreement of both Parties (each in their sole discretion), Provider may grant, and Merchant may accept a worldwide, non-transferable, non-exclusive, non-sublicensable, limited right and license to use, during the term of this Agreement, the object code version of Provider’s software application (the “Software”) solely for purposes of using the Software in connection with, and displaying the Software on, Merchant’s websites in order to enable Customers to request, apply for and receive the Financing Services. The grant of any such license shall be subject to the terms and conditions of this Agreement. Upon display of the Software on Merchant’s websites, Customers shall be permitted to request access to the Financing Services through the Software. Neither Merchant, nor its officers, directors, employees, contractors, agents or other representatives shall:
ㅤㅤ(i) combine, edit, make derivative works or make use of the Software or any components thereof with any other content or software program, unless authorized in writing by Provider; (ii) translate (into any language, computer language or audio or visual format), duplicate, delete, download, decompile, disassemble or reverse engineer the Software or any component thereof;
ㅤㅤ(iii) reproduce, repackage, transcribe, transmit in any form or by any means, sell, resell, rent, license, sublicense, distribute, permit access to or transfer the Software; or
ㅤㅤ(e) Cooperation. Merchant shall promptly provide and make available to Provider such additional information relating to any Customer or Order as is reasonably requested by Provider in order for Provider to determine whether a Customer is eligible to receive the Financing Services from Provider or for Provider to otherwise perform its obligations in a timely manner hereunder. Merchant shall reasonably cooperate with Provider in all matters relating to the Financing Services, including, but not limited to discontinuing services to a Customer that has defaulted on repayments to the Provider in connection with the Financing Services. In the event Merchant seeks to include its trademarks, logos, or trade dress in any of the materials related to the program, Merchant will furnish the Provider with copies of such materials before using them and will cease using any such materials upon Provider’s request.
ㅤㅤ(f) Ineligible Customers. Notwithstanding anything in this Agreement to the contrary, Provider shall not be required or obligated to provide the Financing Services to any Customer. Provider may reject any Customers that Provider or Designated Lender determines are ineligible to receive the Financing Services in Provider’s and Designated Lender’s sole and absolute discretion. Provider shall not be required to disclose, provide or report any information or reports generated by Provider or Designated Lender in connection with its review of a Customer’s eligibility or the reasons for any determination made by Provider or Designated Lender as to a Customer’s eligibility to receive the Financing Services pursuant to this Agreement.
ㅤㅤ(g) Assumptions on Provider’s Performance. Provider shall not be deemed to be in breach of its obligations under this Agreement if Provider’s performance of its obligations hereunder are prevented or delayed by any act or omission of Merchant or its Customers or their officers, directors, employees, contractors, agents or other representatives.
ㅤㅤ(h) Third Party Platform. Provider may permit Merchant, in Provider’s sole discretion, for the Financing Services to be requested by Customers using a third party platform that connects merchants and their customers with financing sources (each a “Third Party Platform”). If Merchant elects to use any Third Party Platform, then in connection with each request for Financing Services routed through the Third Party Platform, (i) Merchant represents and warrants to Provider that Merchant has in place an agreement with the Third Party Platform permitting requests for the Financing Services by Customers; (ii) Merchant acknowledges that it is solely responsible for its own relationship with the Third Party Platform and Provider has no responsibility for and is not liable for any action or inaction by the Third Party Platform; (iii) Merchant shall use commercially reasonable efforts to cause the Third Party Platform to provide prospective Customers with any disclosures needed to permit Merchant to provide requests for Financing Services to the Third Party Platform and to Provider through such the Third Party Platform. Merchant acknowledges that it uses any Third Party Platform at Merchant’s own risk. Provider may suspend, modify, or terminate its relationship with any Third Party Platform in its sole discretion, at any time and without notice, and without affecting the parties’ relationship under this Agreement or the terms of this Agreement.
ㅤㅤ(a) Payment of Orders. Merchant shall promptly provide notice to Provider of any Customer that seeks to pay amounts due for goods or services to be purchased from Merchant through the Financing Services. Such notice shall include the Enrolled Customer’s authorization of the request for Financing Services, the purchase order for any such goods or services (“Merchandise”), and the Merchant’s corresponding invoice (an “Order” or “Approved Purchase Order”). Upon receipt of such Order from Merchant and subject to such Enrolled Customer’s compliance with Provider’s terms and conditions for receipt of the Financing Services, Provider shall pay Merchant the amount requested by such Customer for the Order in accordance with the terms and conditions of Exhibit B to this Agreement (or as otherwise mutually agreed in writing); provided, that such amount shall not be in excess of the amount such Customer is eligible to receive under the Financing Services. Payments (individually or in the aggregate) amounting to $600 or more are subject to IRS Form 1099 Filing Requirements. As the goods and/or services provided by the Merchant are for the benefit of the Customer and Provider only functions as a payment facilitator, all reporting requirements shall be handled directly between Merchant and Customer.
ㅤㅤ(b) Returns; Refunds; Chargebacks. In the event a Customer returns, rejects, or revokes acceptance of any Order for which Financing Services were received, the Parties agree to adhere to the reimbursement procedures for returns, refunds, or chargebacks as set forth in Exhibit C.
ㅤㅤ(c) Terms and Conditions Applicable to Customer. Merchant agrees that Provider shall be entitled to require Customer’s agreement to such terms and conditions governing Customer’s receipt of the Financing Services as Provider and/or the Designated Lender may determine from time to time, in their sole and absolute discretion. Any such terms and conditions, including without limitation, the terms for payment of any such fees and amounts, shall be agreed upon in writing by each such Customer.
ㅤㅤ(a) Mutual Covenants. Each Party hereby agrees to: (i) comply with all applicable laws in connection with the performance of such Party’s obligations hereunder; (ii) maintain complete and accurate records relating to the performance of such Party’s obligations under this Agreement; and (iii) obtain and be responsible for all licenses, permits and other approvals necessary from any applicable regulatory or legal authority necessary for such Party to perform its obligations hereunder.
ㅤㅤ(b) Mutual Representations and Warranties. Each Party represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws and regulations of its jurisdiction of incorporation or organization, as applicable; (ii) the execution and delivery by such Party of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate action on the part of such Party, and this Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding obligation of such Party enforceable against it in accordance with its terms; (iii) it is and will be in compliance with all applicable laws, including without limitation, all applicable data security and privacy laws; (iv) it has and will maintain all licenses, consents, authorizations, permits, approvals and certificates required by applicable law to perform such Party’s obligations hereunder; and (v) the execution and delivery of this Agreement by such Party does not violate, conflict with, require consent under or result in any breach of the provisions of any agreement to which it is a party or by which it is bound.
ㅤㅤ(c) Merchant Representations and Warranties. Merchant represents, warrants and agrees that: (i) each Order submitted to Provider represents a bona fide sale and delivery of goods or rendition of services to a Customer in the ordinary course of its business and that the information contained therein is true, correct and complete; (ii) each such Order will be for a specific amount payable in United States dollars in accordance with the terms of the Order and that the amount set forth therein will fully satisfy the amount due to Merchant pursuant to such Order, which Order shall not be changed without (1) Provider’s written approval or (2) Customer’s provision of an alternative payment method for any difference in charges incurred by such a change; (iii) each Order, the information set forth therein, and the goods or services subject to such Order are owned solely by Merchant, and Merchant has the sole legal rights to sell, assign, transfer, allocate and set over the same to Provider; (iv) to Merchant’s knowledge, Merchant is authorized to disclose to Provider all Customer Data and Orders and the information set forth therein that is submitted to Provider pursuant to this Agreement; (v) to Merchant’s knowledge, all Customer Data, Orders and the information set forth therein was obtained or collected by Merchant in compliance with all applicable laws; (vi) any taxes or fees relating to the approved Orders, other than taxes associated with Provider’s income, are solely Merchant’s responsibility; (vii) the Merchandise will be new and not used, remanufactured, reconditioned or refurbished, unless otherwise agreed and understood in advance by the Customer, and will comply with all specifications contained in such Approved Purchase Order; (viii) the Merchandise is genuine and is not counterfeit, adulterated, misbranded, falsely labeled or advertised or falsely invoiced within the meaning of any applicable local, state or federal laws or regulations, and is properly labeled as required by applicable law, including without limitation under the Federal Trade Commission Trade Practice Rules, the Fair Labor Standards Act, the Federal Food, Drug and Cosmetics Act and similar local, state or federal laws, rules or regulations; (ix) the Merchandise shall be delivered in good and undamaged condition and shall, when delivered, be merchantable and fit and safe for the purposes for which the same are intended to be used, including but not limited to consumer use; (x) all weights, measures, sizes, legends or descriptions printed, stamped, attached or otherwise indicated with regard to the Merchandise are true and correct, and conform and comply with all laws, rules, regulations, ordinances, codes and/or standards of federal, state and local governments relating to said Merchandise; (xi) there is no other impediment or restriction, legal or otherwise, that limits, prohibits or prevents Merchant from selling and delivering the item(s) listed on Order to Customer or limits, prohibits or prevents Customer from using or reselling the Merchandise to its Customers; and (xii) if a services contract in which Merchant is selling services to Customer, such services shall be timely and properly provided in a manner, and shall consist of a quality, that is commensurate with the respective industry in which merchant operates, and shall not be misbranded, falsely labeled or advertised or falsely invoiced within the meaning of any applicable local, state or federal laws or regulations. Upon request by the Provider, Merchant agrees to provide proof that such services were provided to Customer.
ㅤㅤ(d) Certain Prohibited Acts. Neither Merchant nor any of its officers, directors, employees, contractors, agents or other representatives shall make any representations, warranties, guarantees, indemnities, similar claims or other commitments relating to or on behalf of Provider or the Financing Services.
ㅤㅤ(e) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PROVIDER DISCLAIMS AND MERCHANT WAIVES ALL REPRESENTATIONS AND WARRANTIES (WHETHER EXPRESS, IMPLIED OR STATUTORY), INCLUDING WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, ACCURACY, AND WHETHER OR NOT ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY. MERCHANT’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY SHALL BE, AT PROVIDER’S OPTION, RE-PERFORMANCE OF THE FINANCING SERVICES OR TERMINATION OF THIS AGREEMENT.
ㅤㅤ(a) Ownership. Merchant acknowledges and agrees that: (i) Provider (or its licensors) retains all Intellectual Property Rights (as defined below) used to create, embodied in, used in and otherwise relating to the Financing Services and the Software that is created by or otherwise provided by Provider hereunder (“Provider IPR”); (ii) any and all Provider IPR in the Financing Services or Software are the sole and exclusive property of Provider (or its licensors); (iii) Merchant shall not acquire any ownership, license or other interest in any Provider IPR under this Agreement, whether by implication, estoppel or otherwise, except as otherwise expressly granted herein; (iv) any goodwill derived from the use by Merchant of Provider’s Intellectual Property Rights inures to the benefit of Provider (or its licensors); (v) if Merchant is ever deemed to own or have acquired any Intellectual Property Rights in or relating to any Financing Services or Software provided under this Agreement (including any rights in any trademarks, copyrights, patents, derivative works or improvements relating thereto), by operation of law, or otherwise, Merchant hereby irrevocably assigns such rights and interest to Provider (or its licensors) without the need for any further action on to part of either Party; and (vi) Merchant shall use Provider IPR only in accordance with this Agreement or other instructions of Provider. For purposes of this Agreement, “Intellectual Property Rights” means moral rights, rights in or to trademarks, tradenames, trade dress, trade secrets, patents, designs, copyrights, and all applications, continuations (whether in whole or in part), divisions, renewals, extensions, registrations and the rights to register and renew any of the aforesaid rights.
ㅤㅤ(b) No Other Rights. Except as expressly provided in this Agreement, no license, express or implied, or other rights with respect to the Financing Services or Software are granted by Provider to Merchant hereunder.
ㅤㅤ(c) Further Assurances. Merchant shall, upon Provider’s request, execute such documents, including any and all applications, assignments or other instruments, give any testimony and take such other actions as Provider deems necessary for Provider to retain and obtain ownership of any Intellectual Property Rights assigned by Merchant to Provider pursuant to Section 4(a) and to apply for, secure, and maintain patent or other proprietary protection in the United States or any other country with respect to the Financing Services or the Software, provided that Provider shall compensate Merchant for its reasonable out of pocket costs and expenses associated with such actions.
ㅤㅤ(d) Prohibited Acts. Merchant shall not: (i) take any action that may interfere with any of Provider’s rights in or to Provider’s Intellectual Property Rights in the Financing Services or Software, including Provider’s ownership or exercise thereof; (ii) challenge any right, title or interest of Provider in or to Provider’s Intellectual Property Rights in the Financing Services or Software; (iii) make any claim or take any action adverse to Provider’s ownership of Provider’s Intellectual Property Rights in the Financing Services or Software; or (iv) engage in any action that tends to disparage, dilute the value of, or reflect negatively on Provider, the Financing Services or the Software.
Merchant will deliver Merchandise listed in this agreement to the Customer listed on Orders on the dates and in the quantities specified in each Order. In the event of any delays to the scheduled delivery date, and without limiting Provider’s other rights and remedies hereunder, Merchant will notify Provider and Customer of such delay and work diligently to remedy such delay immediately. In the event of any delay in delivery, in addition to any other rights or remedies otherwise available, Provider or Customer shall have the right to cancel or reschedule the affected order in Provider’s sole discretion without further liability under this Agreement and/or Customer shall have the right to reject any Merchandise listed in the Order delivered to Customer after the time specified. Merchant will be responsible for all costs associated with the rejected Merchandise including but not limited to (i) unpacking, examining, repacking and storing such Merchandise; (ii) and landing and reshipping such Merchandise.
ㅤㅤ(a) Acceptance. All Merchandise listed on the Approved Purchase Orders, purchased and shipped hereunder are subject to acceptance by Customer at the ship-to address designated in the Approved Purchase Order. Customer shall have at least thirty (30) days after delivery of any Merchandise to inspect and accept or reject such Merchandise (the “Acceptance Period”). Any Merchandise that is not rejected during the Acceptance Period is deemed accepted by Customer. Acceptance of any Merchandise shall not preclude any subsequent claim with respect to such Merchandise as set forth throughout this Agreement. If during the Acceptance Period, Customer identifies any Merchandise that does not conform to the Specifications (“Nonconforming Product”), Customer shall have the right, at its sole option, to: (i) reject such Nonconforming Product, (ii) require replacement of the Nonconforming Product, (iii) accept the Nonconforming Product with an adjustment in price, or (iv) return such Nonconforming Product for credit or refund. Any rejected Merchandise must be replaced by Merchant, at Merchant’s expense, within seven (7) business days after the request of Customer and/or Provider. Upon delivery of replacement Merchandise, Customer shall accept or reject such replacement in accordance with this Section.
ㅤㅤ(b) Rejection or Revocation of Acceptance. Where the Customer rejects or revokes the delivery of goods and Merchant fails or refuses to cure said rejection or revocation in a timely manner, as defined by the UCC, the Merchant shall refund to the Provider via ACH or wire transfer the monies paid by the Provider for the Purchase Order or Orders that are the subject of said rejection, revocation or dispute. Where the Merchant has breached the agreement with the Customer in any other manner, the Merchant shall refund to the Provider via ACH or wire transfer the monies paid by the Provider for the Purchase Order or Orders that are the subject of said breach or dispute. In the event Merchant fails to provide a refund to the Provider, Merchant shall be responsible to pay all legal expenses and costs, reasonable attorney’s fees, and collection expenses incurred by Provider in attempting to enforce the terms of this Agreement.
Title in the Goods and Merchandise identified in Orders, shall not pass to Customer listed on the Order until the Merchandise has been delivered to such Customer. All risk of loss or damage with respect the Merchandise in Orders shall remain with Merchant and pass to Customer only upon delivery.
If Merchandise listed on an Order is the subject of a recall, whether initiated by Merchant or otherwise (including the issuance of safety notices by a government entity), Merchant shall be responsible for all matters and costs associated with the recall, including but not limited to:
(a) Customer notification and contact;
(b) All expenses and losses incurred by Provider and/or Customer in connection with such Recall (and where applicable, any products with which the Recalled Merchandise has been packaged, consolidated or commingled), including but not limited to refunds to Customers, lost profits, transportation costs and all other costs associated therewith;
(c) Initial contact and reporting of the Recall to any government agency having jurisdiction over the affected Merchandise listed on the Approved Purchase Order; and
(d) Where the recall of Merchandise listed on the Approved Purchase Order cannot be cured timely, as defined by the UCC, the Merchant shall refund to the Provider via ACH or wire transfer the monies paid by the Provider for the Merchandise on the Purchase Order or Orders that are the subject of the recall.
Merchant shall protect, defend, hold harmless and indemnify Provider, including its officers, directors, employees and agents, from and against any and all lawsuits, claims, demands, actions, liabilities, losses, damages, costs and expenses (including attorney fees and court costs), regardless of the cause or alleged cause thereof, and regardless of whether such matters are groundless, fraudulent or false, arising out of any actual or alleged:
ㅤㅤ(a) Misappropriation or infringement of any patent, trademark, trade dress, trade secret, copyright or other right relating to any Merchandise listed on an Order;
ㅤㅤ(b) Death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any actual or alleged use of or latent or patent defect in the Merchandise listed on an Order, including but not limited to (i) any actual or alleged failure to provide adequate warnings, labelings or instructions, (ii) any actual or alleged improper construction or design of said Merchandise, or (iii) any actual or alleged failure of said Merchandise to comply with specifications or with any express or implied warranties;
ㅤㅤ(c) Violation of any law, statute, ordinance, governmental administrative order, rule or regulation relating to the Merchandise listed on an Order, or to any of its components or ingredients, or to its manufacture, shipment, labeling, use or sale, or to any failure to provide a Material Safety Data Sheet or certification;
ㅤㅤ(d) Breach of this Agreement; and
ㅤㅤ(e) Gross Negligence or willful misconduct by Merchant or any of its employees, representatives or agents.
Merchant shall promptly notify Provider of the assertion, filing or service of any lawsuit, claim, demand, action, liability or other matter that is or may be covered by this indemnity and shall immediately take such action as may be necessary or appropriate to protect the interests of Provider, its officers, directors, employees and agents. Provider shall at all times have the right to direct the defense of, and to accept or reject any offer to compromise or settle, any lawsuit, claim, demand or liability asserted against Provider or any of its officers, directors, employees or agents.
ㅤㅤ(a) Term. This Agreement continues until terminated by either Party. Unless otherwise agreed to by the Parties in writing, either Party, in its sole discretion, may terminate this Agreement by providing at least ten (10) days’ prior written notice of termination to the other Party.
ㅤㅤㅤㅤ(i) Termination by Provider. Provider, in its sole discretion may immediately terminate this Agreement upon written notice to Merchant if Merchant’s Return Rate is excessive or unacceptable as determined in Provider’s sole discretion or if Merchant breaches this Agreement. For purposes of this Agreement, the term “Return Rate” shall mean the rate at which Merchant’s Customers return, reject, or revoke acceptance of Merchant’s goods or services, as calculated by dividing the dollar amount of all Orders paid to Merchant by Provider that were subject to returns, rejections or revocations by Customers in the preceding sixty (60) days by the total dollar amount of Orders paid to Merchant by Provider within the same time period.
ㅤㅤ(b) Effect of Termination. Expiration or termination of this Agreement shall not relieve the Parties of any right or obligation accruing prior to such expiration or termination. Upon expiration or termination of this Agreement, each Party agrees to return all confidential information received from the other Party, except as to such information it may be required to retain pursuant to law or to service the accounts of Customers that received Financing Services and except for one copy of such information that may be retained by such Party’s legal department. Merchant further agrees to immediately cease using and destroy or return all copies of the Software provided by Provider pursuant to this Agreement.
EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE, WHETHER AS A RESULT OF CONTRACTUAL BREACH, TORT OR OTHERWISE, TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE OR INCIDENTAL DAMAGES INCURRED BY SUCH OTHER PARTY, INCLUDING BUT NOT LIMITED TO INJURY TO GOODWILL OR DIRECT OR INDIRECT LOST PROFITS.
Except as otherwise stated below, any Claim (as defined below) will be resolved, at the election of the Provider or Merchant, by binding arbitration pursuant to (a) this section (the “Arbitration Provision”) and (b) the code of procedure of the national arbitration organization to which the Claim is referred (as in effect when the Claim is filed). Claims will be referred to either Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”), as selected by the party electing to use arbitration. Streamlined arbitration procedures will be used if available. If for any reason a selected organization cannot, will not, or ceases to serve as an arbitration administrator, Provider or Merchant may substitute another arbitrator or arbitration organization that uses a similar code of procedure and is mutually acceptable to both parties, in accordance with Section 5 of the Federal Arbitration Act. If both parties cannot agree on an arbitration organization, then either party may ask a court of competent jurisdiction to appoint a qualified arbitration organization. An arbitration proceeding can decide only Provider’s or Merchant’s Claims. Merchant cannot join other parties (or consolidate Claims). Neither Provider nor Merchant will be permitted to arbitrate claims on a class-wide (that is, on other than an individual) basis.
ㅤㅤ(a) Broad Meaning of “Claims”. For purposes of this Arbitration Provision, “Claim” means any claim, dispute or controversy (whether in contract, tort, or otherwise) past, present or future, (collectively, “Claims”). The term “Claim” in this Arbitration Provision is to be given the broadest possible meaning and includes, by way of example and without limitation, Claims arising from or relating to (i) this Agreement, (ii) any transactions effected pursuant to this Agreement, (iii) terms of or change or addition of terms to this Agreement, (iv) collection of Merchant’s obligations arising from this Agreement, (v) advertisements, promotions or oral or written statements relating to this Agreement or any transactions between Merchant and Provider pursuant to this Agreement, including any Claims regarding information obtained by Provider from, or reported by Provider to, credit reporting agencies or others, (vi) Claims between Merchant and Provider or their parent corporations, wholly or majority owned subsidiaries, affiliates, predecessors, successors, assigns, agents, independent contractors, employees, officers, directors or representatives arising from any transaction between Merchant and Provider pursuant to this Agreement and (vii) Claims regarding the validity, enforceability or scope of this Arbitration Provision or this Agreement including but not limited to whether a given claim or dispute is subject to arbitration.
ㅤㅤ(b) Small Claims Court Option. All parties, including related third parties, shall retain the right to seek adjudication of an individual (and not class or representative) Claim in a small claims tribunal in the county of in which Merchant is headquartered for disputes within the scope of such tribunal’s jurisdiction. Any dispute that cannot be adjudicated within the jurisdiction of a small claims tribunal, including claims transferred by the small claims tribunal to another court, shall be resolved by binding arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved by binding arbitration.
ㅤㅤ(c) SIGNIFICANCE OF ARBITRATION; LIMITATIONS AND RESTRICTIONS. IN ARBITRATION, NEITHER PROVIDER NOR MERCHANT WILL HAVE THE RIGHT TO (i) HAVE A COURT OR JURY DECIDE THE CLAIM BEING ARBITRATED, (ii) ENGAGE IN PRE-ARBITRATION DISCOVERY (THAT IS, THE RIGHT TO OBTAIN INFORMATION FROM THE OTHER PARTY) TO THE SAME EXTENT THAT PROVIDER OR MERCHANT COULD IN COURT, (iii) PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS IN A CLASS ACTION, IN COURT OR IN ARBITRATION, RELATING TO ANY CLAIM SUBJECT TO ARBITRATION OR (iv) JOIN OR CONSOLIDATE CLAIMS OTHER THAN PROVIDER’S OWN OR MERCHANT’S OWN. OTHER RIGHTS AVAILABLE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Except as set forth below, the arbitrator’s decision will be final and binding. Only a court may decide the validity of items (iii) and (iv) above. If a court holds that items (iii) or (iv) are limited, invalid or unenforceable, then this entire Arbitration Provision will be null and void. Provider or Merchant can appeal any such holding. If a court holds that any other part(s) of this Arbitration Provision (other than items (iii) and (iv) are invalid, then the remaining parts of this Arbitration Provision will remain in force. An arbitrator will decide all other issues pertaining to arbitrability, validity, interpretation and enforceability of this Arbitration Provision. The decision of an arbitrator is as enforceable as any court order and may be subject to very limited review by a court. An arbitrator may decide any Claim upon the submission of documents alone. A party may request a telephonic hearing if permitted by applicable rules. The exchange of non-privileged information relevant to any Claim, between the parties, is permitted and encouraged. Either party may submit relevant information, documents or exhibits to the arbitrator for consideration in deciding any Claim.
ㅤㅤ(d) Right to Opt-Out of Arbitration. Merchant may opt-out of this Arbitration Provision. If Merchant does so, neither Provider nor Merchant will have the right to engage in arbitration. Opting out of this Arbitration Provision will have no effect on any of the other provisions in this Agreement. To opt out of this Arbitration Provision, Provider must receive Merchant’s written notice of opt-out, within 30 calendar days of this Agreement becoming effective, at 14451 Highway 7, Suite 213, Minnetonka, MN 55345. In Merchant’s letter, Merchant must also give Provider the following information: Merchant’s name and address. The right to opt-out granted here applies solely to this Arbitration Provision, and not to any other provision of this Agreement or other agreement with Provider. In the event of a dispute over whether Merchant has provided a timely opt-out notice, Merchant must provide proof of delivery.
ㅤㅤ(e) Arbitration Procedure and Costs. For a copy of relevant codes of procedure, to file a Claim or for other information about JAMS and AAA, write them, visit their website or call them at: (i) for JAMS, 18881 Von Karman Ave., Suite 350, Irvine, CA 92612, https://www.jamsadr.com, or 1-800-352-5267; or (ii) for AAA, 120 Broadway, 21st Floor, New York, NY 10271, https://www.adr.org, or 1-800-778-7879. If either party fails to submit to arbitration following a proper demand to do so, that party will bear the costs and expenses, including reasonable attorneys’ fees, incurred by the party compelling arbitration. Any physical arbitration hearing will be held in the federal judicial district selected by Merchant. No matter which party initiates the arbitration, Provider will advance or reimburse filing fees and other costs or fees of arbitration. Each party will initially be responsible for its own attorneys’, experts’ and witness fees and related costs and expenses. Unless prohibited by law, the arbitrator may, applying applicable law, award fees, costs and reasonable attorneys’ fees and expenses to the party who substantially prevails in the arbitration. The allocation of fees and costs relating to an appeal in arbitration will be handled in the same manner. For an explanation and schedule of the fees that may apply to an arbitration proceeding, please contact the organizations at the addresses above. The appropriate fee schedule in effect from time to time is hereby incorporated by reference into this Arbitration Provision. The cost of arbitration may be higher or lower than the cost of bringing a Claim in court, depending upon the nature of the Claim and how the arbitration proceeds. Having more than one Claim and holding a physical arbitration hearing can increase the cost of arbitration.
ㅤㅤ(f) Governing Law for Arbitration. This Arbitration Provision is made pursuant to a transaction involving interstate commerce, and will be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., as amended, notwithstanding any other governing law provision in this Agreement. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law. Judgment upon any arbitration award may be entered and enforced in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA, in which case any party can appeal the award to a three-arbitrator panel administered by the selected arbitration administrator. The panel will reconsider de novo, that is, without deference to the ruling of the original arbitration, any aspect of the initial award requested by the appealing party.
ㅤㅤ(g) Continued Effect of Arbitration Provision. This Arbitration Provision will continue to govern any Claims that may arise without regard to any termination or cancellation of this Agreement. If any portion of this Arbitration Provision, other than the provisions prohibiting class-wide arbitration, joinder or consolidation, is deemed invalid or unenforceable under the FAA, it will not invalidate the remaining portions of this Arbitration Provision. If a conflict or inconsistency arises between the code of procedures of the selected arbitration administrator and this Arbitration Provision, this Arbitration Provision will control.
ㅤㅤ(a) Assignment. Except as otherwise set forth herein, neither Party shall transfer, assign or cede any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law or as a result of a change of control, without the prior written consent of the other Party, which consent may be withheld at the other Party’s reasonable discretion, provided, that either Party may transfer and assign this Agreement without the prior written consent of the other Party in connection with a merger or sale of all or substantially all of the stock or assets of such Party.
ㅤㅤ(b) Notices. Any notice required or permitted to be given to Provider pursuant to this Agreement shall be sufficiently given if sent to the Provider by registered or certified mail addressed to the Provider at 14451 Highway 7, Suite 213, Minnetonka, MN 55345, or at such other address as Provider shall designate by notice to Merchant, and any notice required or permitted to be given to the Merchant pursuant to this Agreement shall be sufficiently given if sent to the Merchant by any reasonable method to the mailing address, fax number or email address listed with Provider as Merchant’s contact information.
ㅤㅤ(c) Force Majeure. Nonperformance by either Party hereto shall be excused to the extent that performance is rendered impossible by strike, fire, explosion, flood, acts of God, terrorism, war or civil commotion, governmental acts or orders or restrictions, failure of suppliers, public utilities or common carriers, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the non-performing Party. Such non-performing Party shall exercise best efforts to eliminate the force majeure event and to resume performance of its affected obligations as soon as practicable.
ㅤㅤ(d) Severability. If any term or provision of this Agreement is held to be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. In addition, the Parties shall renegotiate in good faith any term or provision held to be invalid or unenforceable, and be bound by the mutually agreed upon substitute provision.
ㅤㅤ(e) Entire Agreement; Waiver. This Agreement, including the attached exhibits, constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof. Failure to require performance of any provision hereof shall in no manner affect the right of such party at a later time to enforce the same, and no waiver in any one instance shall be deemed to be a further or continuing waiver of the same or any other provision.
ㅤㅤ(f) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. Any disputes between the Parties shall be exclusively venued in the state or federal courts located in New York and the Parties hereto consent to jurisdiction and venue therein.
ㅤㅤ(g) Independent Contractor Status. The relationship between Provider and Merchant established by this Agreement is that of independent contractors. Nothing contained in this Agreement shall be construed to make either Party the agent of the other Party for any purpose, and neither Party shall have authority to enter into contracts or otherwise to act for or bind the other Party in any manner, whatsoever, as agent or otherwise.
ㅤㅤ(h) No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective indemnitees, permitted successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
ㅤㅤ(i) Cumulative Remedies. Except as specifically set forth in this Agreement, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
ㅤㅤ(j) Offsets. Provider shall have the right to offset from amounts payable to Merchant any amount Merchant owes to Provider that has been due for more than 30 days. Provider may offset such amounts without any further notice or consent by Merchant.
ㅤㅤ(k) Headings. The headings in this Agreement are for reference only and do not affect the interpretation or meaning of this Agreement.
ㅤㅤ(l) Further Actions. Merchant agrees to execute, acknowledge and deliver such further instruments, and to do all such other acts, as may be reasonably necessary or appropriate in order to carry out the purpose and intent of this Agreement.
ㅤㅤ(m) Records. Merchant shall maintain accurate records regarding Financing Services, applications for Financing Services, the sale of any goods or services paid using Financing Services, and related documentation for each Customer for the greater of three years or any time period required by applicable law. Upon Provider’s request, Merchant shall provide Provider access to any documents relating to (i) a Financing Service, (ii) an application for a Financing Service, or (iii) the goods or services provided. Provider may make copies of such Merchant documents at its own expense.
ㅤㅤ(n) Security and Security Questionnaire. Merchant shall implement and maintain commercially reasonable network and data security procedures and controls with respect to the performance of its obligations hereunder and with respect to any data in systems owned or managed by Merchant. In particular, Merchant shall maintain and implement commercially reasonable organizational, administrative, technical, physical and logical safeguards designed to protect each Party’s networks, systems, databases, equipment, files and locations against unauthorized and unlawful access and intrusion by third parties. Upon Provider’s written request, to confirm compliance, as well as any applicable law and industry standards, Merchant shall promptly and accurately complete any security questionnaire submitted by Provider or a third party on Provider’s behalf. Provider reserves the right to take or require any actions necessary to ensure that Merchant’s network, data security, and other procedures and controls with all applicable laws and sufficiently protect Provider, any Designated Lender, and Customers.
ㅤㅤ(o) Audit; Access. Records maintained pursuant to Section 12(m) and other records relevant to Merchant’s compliance with this Agreement or applicable law shall be open for inspection or audit by Provider, a Designated Lender, their Affiliates and their respective agents, representatives and regulators (the “Auditors”), at the expense of the auditing party. Any access permitted pursuant to this Section shall be during normal business hours on business days, upon not less than ten (10) business days prior written notice, or upon such shorter notice as a regulator may require. Provider and its Auditors shall have the right to make copies of such records at their own expense.
ㅤㅤ(p) Communications. Merchant agrees that Provider may (i) contact Merchant and its employees at any address (including email) or telephone number (including wireless cellular telephone or ported landline telephone number) as Merchant may provide to Provider, any Designated Lender, or their service providers from time to time, even if added to any state or federal do-not-call registry; (ii) use any means of communication, including, but not limited to, postal mail, electronic mail, telephone or other technology, to reach Merchant; (iii) use automatic dialing and announcing devices which may play recorded messages; and (iv) send text messages to telephone numbers provided by Merchant. Merchant may withdraw this express written consent at any time by contacting Provider and telling Provider specifically what address or telephone number not to use. To ensure that Merchant receives quality service and for training purposes, Provider agrees that Provider may select phone calls for monitoring and/or recording.
ㅤㅤ(q) Changes in Terms. Provider may change the terms of this Agreement at any time, including by changing or removing any of the terms and conditions of, or adding new terms or conditions to, this Agreement by providing at least thirty (30) days’ prior notice to Merchant. Merchant accepts any such changes unless Merchant terminates this Agreement prior to such changes becoming effective.
Merchant will pay Provider a monthly fee in an amount agreed to electronically or in writing between Merchant and Provider, plus any applicable taxes. A monthly fee is earned on the Effective Date and each calendar anniversary of the Effective Date. Each monthly fee is fully earned on that date and no portion will be refunded to Merchant if this Agreement is terminated. Merchant shall pay this fee within 30 days of Provider sending an invoice with the fee to Merchant. Past due amounts are subject to a late fee of 1.5% for each month that a past due amount remains outstanding, plus all expenses of collection.
Payments by Provider to Merchant under the Agreement shall be made by automated clearinghouse transfer (ACH).
All returns, refunds, or chargebacks resulting from aCustomer’s election to return or reject goods or services provided by Merchant, disputed receipt of goods or services, Order error, incorrect pricing, or unauthorized or fraudulent transactions will be processed under this ExhibitC. Chargebacks caused by sales tax processing errors on behalf of Merchant shall be resolved directly by Merchant.
1. Dispute Notification:
ㅤㅤ(a) Merchant agrees to notify Provider within forty-eight (48) hours by emailing Provider at firstname.lastname@example.org one of the following occurs:
ㅤㅤㅤㅤ(i) Customer returns, rejects or revokes acceptance of the goods or services provided by Merchant, in whole orin part, for any reason;
ㅤㅤㅤㅤ(ii) Customer disputes receipt of the goods or services provided by Merchant, including, without limitation, disputes arising from or relating to alleged incorrect pricing, an error in the Order, failure to receive the goods or services purchased, or an unauthorized or fraudulent transaction.
ㅤㅤ(b) The dispute notification emailed to Provider by Merchant will contain the name of the Customer, Order number, the nature of the dispute or other issue, and the date and amount of any refund or reimbursement.
ㅤㅤ(c) Customers can initiate a dispute regarding goods or services purchased from Merchant using the FinancingServices by calling Provider’s customer support line. Provider does not allow Customers to initiate disputes online. Customers may be asked to supply additional supporting documents before the dispute investigation will commence.
2. Dispute Investigation: In the event a Customer disputes a Merchant transaction directly with Provider, Provider will investigate each disputed transaction before the dispute is presented to the Merchant. A Dispute Agent of Provider will coordinate with the Merchant representative to provide documentation to aid in resolving the dispute.
ㅤㅤ(a) If a Customer returns, rejects or revokes acceptance of the goods or services provided by Merchant for any reason, Merchant shall promptly refund to Provider via ACH or wire transfer all amounts paid to Merchant by Provider in connection with the Order(s) that is the subject of said dispute; provided that Merchant shall not be obligated to refund Provider in the event Merchant successfully cures the return, rejection or revocation timely as defined by the Uniform Commercial Code (“UCC”)or within thirty (30) days of receiving notice of same and such cure does not decrease or otherwise interfere with the amounts due Provider from Customer.
ㅤㅤ(b) If a Customer otherwise disputes the receipt of the goods or services provided by Merchant, Merchant shall promptly refund to Provider via ACH or wire transfer all amounts paid to Merchant by Provider in connection with the Order(s) that is the subject of said dispute; provided that Merchant shall not be obligated to refund Provider in the event Merchant successfully cures said dispute within thirty(30) days of receiving notice of the dispute and such cure does not decrease or otherwise interfere with the amounts due Provider from Customer.
(c) In the event Merchant breaches its agreement with the Customer in any other manner, Merchant shall promptly refund to Provider via ACH or wire transfer all amounts paid to Merchant by Provider in connection with the Order(s) that is the subject of said breach or dispute.
(d) In the event Merchant fails to provide a refund to Provider as set forth in this Section, Merchant shall also be responsible to pay Provider (i) any direct costs incurred by Provider as a result of Merchant’s breach of this Agreement or an amount equal to Five Thousand Dollars($5,000), whichever is greater, plus (ii) all legal expenses and costs, reasonable attorney’s fees, and collection expenses incurred by Provider in attempting to enforce the terms of this Exhibit C.
ㅤㅤ(a) Merchant shall pay Provider a 1%fee on the amount of all Merchant refunds that occur more than forty (40) days after Merchant received notice from Customer or Provider of the return, rejection, revocation or dispute regarding the goods or services provided by Merchant.
ㅤㅤ(b) Merchant shall pay Provider a 1%fee on the amount of any Order subject to a return, rejection, or revocation by a Customer that causes Merchant’s Return Rate to exceed twenty percent (20%).
Provider may adjust these fees upon at least thirty (30) days’ prior written notice to Merchant.