WHEREAS, TVPS is engaged in the business of merchant marketing and payment processing services (hereafter referred to as “Merchant Services”), which includes, but is not limited to, merchant solicitation, new accounts underwriting and due diligence, new accounts set-up and boarding, terminal downloads and deployment, transaction processing and reconciliation (authorizations & settlement), online reporting, risk management, compliance monitoring, dispute resolutions/chargebacks, and customer support; and.
WHEREAS, upon the terms and conditions contained herein, RESELLER desires to promote the Merchant Services and refer certain Entities/Businesses hereinafter referred to as “Merchants” desirous of obtaining the Merchant Services; and
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
SECTION ONE – MARKETING THE MERCHANT SERVICES
1.1 Appointment. Subject to the terms and conditions of this Agreement, TVPS hereby appoints RESELLER to market its Merchant Services program. In connection with such appointment, RESELLER agrees to (1) market the Merchant Services only to “authorized” prospective Merchants that meet TVPS’s underwriting approval criteria, which shall be provided to RESELLER by TVPS and (2) utilize only those merchant registration forms, applications, agreements, schedules, addendums, amendments, exhibits and related documents approved by TVPS, its authorized Vendors and PBM[s] for Merchants requesting to participate in the Merchant Services. RESELLER acknowledges that the underwriting criteria of TVPS, its authorized Vendors and PBM[s] are fluid and may change from time to time. RESELLER further acknowledges that this appointment is non-transferrable without TVPS’s prior approval and Notice.
1.2 RESELLER Operating Duties. For any such Merchants referred by RESELLER to TVPS, RESELLER acknowledges to be responsible to perform any and all Merchant pre-qualifications, presentations, proposals, billing statement analyses, price quoting and negotiations, business model write-ups and the completion and submittal of TVPS Merchant registration documents and required supporting information (e.g., voided check, government-issued photo identification).
1.3 TVPS Operating Duties. For any such Merchants referred by RESELLER to TVPS, it shall be the responsibility of TVPS, its authorized Vendors and PBM[s] to provide back-office support and systems that includes, but is not limited to Merchant underwriting due diligence and approvals, new accounts set-ups and boarding, terminal downloads and deployments, ongoing training, transaction processing and reconciliation (authorizations & settlement), online reporting with monthly billing statements, risk management, compliance monitoring, dispute resolutions/chargebacks, and customer support.
1.4 Approval of Merchants. RESELLER acknowledges that any Merchants referred by RESELLER to TVPS are subject to approval by TVPS, it’s authorized Vendors and PBM[s] in their sole discretion, and Merchants will be able to utilize the Merchant Services effective only upon Notice of such approval. RESELLER agrees not to make any representations or promises of approval to any Merchants prior to receiving a Notice of approval by TVPS in advance.
1.5 Merchant Services Agreement. RESELLER acknowledges that the Merchant Services Application and Agreement utilized by RESELLER will govern the relationship between Merchants, TVPS, authorized Vendors and PBM[s]. RESELLER agrees not to make any changes or modifications to the Merchant Services Agreement. Any and all changes or modifications to the Merchant Service Agreement must be submitted to TVPS in advance utilizing the Amendment to Merchant Services Agreement with any approvals subject to the sole discretion of TVPS, its authorized Vendors and PBM[s]. RESELLER shall not make any separate agreements with TVPS Merchants for any Merchant Services type activities including, but not limited to, side-line payment consulting services, nor will RESELLER establish ACH debit accounts used to debit Merchants’ checking accounts unless authorized in advance by TVPS in writing. TVPS, it’s authorized Vendors and PBM[s] reserves the right to amend or change in any manner any agreement[s] between the Merchant, including changes to any and all fees due from Merchants.
1.6 Acceptable Merchants. RESELLER shall market the Merchant Services only to bona fide and lawful businesses in accordance with TVPS underwriting guidelines, policies, and procedures. Further, RESELLER shall promptly provide Notice to TVPS of any adverse information that RESELLER receives relating to any Merchant, including information regarding a Merchant's financial condition or any other relevant information relating to Merchant that could have a material impact on Merchant's ability to conform to the terms of its agreement[s].
1.7 Independent Contractors. The relationship between TVPS and RESELLER is that of independent contractors. Neither RESELLER nor RESELLER's employees, consultants, contractors or agents are agents, employees, partners or joint ventures of TVPS, nor do they have any authority to bind TVPS by contract or otherwise to any obligation. They will not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
1.8 Compliance with Laws/Marketing Materials. RESELLER agrees to comply with the bylaws, rules, operational regulations, procedures and guidelines (“Rules”) as promulgated by, VISA, MasterCard, Discover, American Express, and all other such associations/organizations, as applicable and as they may exist from time to time, and the rules and regulations of any debit network(s) having jurisdiction over the activities of TVPS, its authorized Vendors, PBM[s] and RESELLER. RESELLER further agrees to accept and abide by any amendments and revisions to the Rules. RESELLER agrees to comply with all applicable international, national, state, regional and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Merchant Services. RESELLER shall use only those marketing and promotional materials that comply with the Rules and all international, national, state, local and any other applicable laws or regulations (collectively “Rules”). In the event of any inconsistency between any provision of this Agreement and the Rules, the Rules shall govern.
1.9 RESELLER Covenants. RESELLER shall: (i) conduct business in a manner that reflects favorably at all times on the Merchant Services and the good name, goodwill and reputation of TVPS, its authorized Vendors and PBM[s]; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to TVPS, the Merchant Services, its authorized Vendors, the PBM[S] and the public; (iii) make no false or misleading representations with regard to TVPS or the Merchant Services; (iv) not publish, employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to TVPS, its authorized Vendors and PBM[s], or the Merchant Services; (v) promote proper use of Merchant Services; (v) make no representation, warranties or guarantees to prospective Merchants with respect to the specifications, features or capabilities of the Merchant Services that are inconsistent with the literature distributed by TVPS; (vi) make reasonable efforts to attend all reasonably scheduled TVPS training seminars if provided; (vii) maintain appropriate, substantive and routine communications with the referred Merchants (unless otherwise agreed to between TVPS and RESELLER); and, (viii) not contact or attempt to contact, directly or indirectly either in writing or verbally, TVPS’s authorized Vendors or PBM[S] as applicable. Further, RESELLER agrees and acknowledges that:
(a) RESELLER will use its best efforts to market the Merchant Services set forth herein under the TVPS brand name, and/or any TVPS subsidiary brand name (as applicable);
(b) RESELLER agrees not to remove any logos or identifying information on the Merchant Services Application and Agreement and acknowledges that any and all changes or modifications to the Merchant Service Agreement must be submitted to TVPS in advance utilizing the Amendment to Merchant Services Agreement with any approvals subject to the sole discretion of TVPS, its authorized Vendors and PBM[s];
(c) RESELLER shall ensure that any independent entity or person contracted by RESELLER to market the TVPS Merchant Services for RESELLER shall execute documents in advance and become an approved registered representative of TVPS prior to marketing the Merchant Services, and
(d) During the course of RESELLER marketing the Merchant Services, RESELLER shall not directly or indirectly engage in any deceitful, willful or fraudulent act and/or be complicit in any willful, fraudulent and/or deceitful activity, including through the activity of any of RESELLER’s employees, agents or nominees.
1.10 Use of the Marks. RESELLER may use the applicable trademarks and service marks of TVPS, and all other such associations/organizations (the “Marks”) only in promoting the Merchant Services in conformance with the Rules subject to the sole discretion and approval of TVPS. Upon termination of this Agreement, RESELLER agrees that it shall no longer use
the Marks or anything similar thereto. Notwithstanding anything to the contrary, nothing stated herein shall be construed as granting RESELLER any right, title or interest in and to the Marks or the goodwill associated therewith, and RESELLER acknowledges that it will not, at any time, during or subsequent to the term of this Agreement, do or cause to be done, any act or thing contesting or in any way impairing or intending to impair any part of the right, title and interest and the goodwill represented by the Marks or impugn or attack the validity of the Marks in any form or fashion the reputation of TVPS, its authorized Vendors and PBM[s].
SECTION TWO – THE SERVICE
2.1 Non-Exclusivity. Both Parties hereby acknowledge that this Agreement is nonexclusive. Both Parties hereby acknowledge and agree that either Party shall have the right to enter into agreements with other individuals/entities for the same or similar services/purposes as outlined in this Agreement. However, RESELLER shall not, directly, nor indirectly cause any approved Merchant to move their account once approved by TVPS. TVPS shall have the right for full compensation for loss of revenue from RESELLER in such an event including any court costs, attorney’s fees and any other fees involved in defending TVPS’s rights in such an event. Notwithstanding this provision, in the event, that RESELLER submits a completed Merchant Service Application and Agreement to TVPS for the same entity, TVPS shall reasonably determine which RESELLER shall earn the commissions. TVPS shall be under no obligation to pay RESELLER in such an occurrence.
2.2 Ownership of Merchant Agreements and the Merchant Program. RESELLER acknowledges and agrees that it will have no equity interest, ownership, or other rights in any Merchant Agreement or in the Merchant Services provided. Further, RESELLER acknowledges and agrees that all TVPS Merchant Agreements, Merchant records, documentation, and the information contained therein are the property of and are owned by TVPS, its authorized Vendors and PBM[s]. Notwithstanding this provision, RESELLER shall retain it's right and interest to its applicable compensation (residuals/commissions) as set forth herein, except if terminated for cause pursuant to the terms of this Agreement set forth hereinbelow.
SECTION THREE – COMPENSATION (COMMISSIONS/RESIDUALS)
3.1 RESELLER Compensation. RESELLER acknowledges and agrees to the following:
(A) During any period of time in which this Agreement remains in full force and effect, any Commissions/Residuals due to RESELLER will be paid as set forth in the RESELLER Schedule A – Buy Rate & Compensation Split, incorporated herein by reference, hereto and made a part of this Agreement.
(B) Any earned Commissions/Residuals due to RESELLER under this Agreement shall be derived from approved Merchant Accounts boarded on TVPS systems, that have been referred by RESELLER to TVPS and that are generating earned profits as a result of transaction processing or otherwise (as applicable), as stated in the RESELLER Schedule A – Buy Rate & Compensation Split.
(C) Any earned Commissions/Residuals paid by TVPS to RESELLER under this Agreement are calculated on a “Net Margin Revenue” basis from profits made and paid to TVPS by its authorized Vendors and PBM[s]. Net Margin Revenues paid to RESELLER represents the spread difference between the RESELLER (“buy rates”) and the mark-up of fees assessed to Merchant (“sell rates”).
(D) If any authorized Vendor or PBM[s] has not paid TVPS the earned commissions due, then TVPS shall be under no duty or obligation to pay any corresponding Commissions/Residuals to RESELLER until such time as TVPS is paid, in which case TVPS will then resume paying RESELLER its Commissions/Residuals due.
(E) In the event that any of the TVPS buy rate pricing terms increase, as assessed to TVPS by any authorized Vendors and/or PBM[s], then subsequently TVPS shall, in its sole discretion, have the right to adjust the corresponding buy rate terms to RESELLER, as set forth in the RESELLER Schedule A – Buy Rate & Compensation Split. Notwithstanding the foregoing, the agreed-upon Commissions/Residuals split between TVPS and RESELLER, as set forth in the RESELLER Schedule A – Buy Rate & Compensation Split, shall be unaffected and the percentage allocation to RESELLER will remain the same.
(F) Any authorized Vendors and/or PBM[s] of TVPS, in their sole discretion, reserve the right to suspend any Merchant’s processing for cause and subsequently any Commissions/Residuals payable to TVPS. In such an event TVPS is under no duty or obligation to pay RESELLER unless Merchant processing resumes and TVPS gets paid, in which case TVPS shall then recommence Commissions/Residuals payments to RESELLER.
(G) Should any Merchant bring suit against the RESELLER and also names TVPS, or its principals, or any of its affiliated companies in the suit, then TVPS shall immediately suspend Commissions/Residuals to RESELLER for any corresponding referred Merchant. Should RESELLER be found not guilty, TVPS shall then resume payment to RESELLER for the referred Merchant, less any legal fees and out of pocket expenses attributed in the suit that that was expended by TVPS, its authorized Vendors and/or PBM[s]. Should RESELLER be found guilty in the suit, TVPS shall then be under no further obligation to pay RESELLER Commissions/Residuals for the referred Merchant whatsoever. Furthermore, and depending on the severity of the charges due to gross negligence, willful misconduct, or otherwise, that causes harm to TVPS, its authorized Vendors and PBM[s], TVPS may, in its sole discretion terminate RESELLER.
(H) Should any referred Merchant begin operating at a loss to TVPS, its authorized Vendors and PBM[s] for any reason whatsoever; TVPS shall immediately suspend Commissions/Residuals to RESELLER for the referred Merchant. Should any referred Merchant, become profitable again; TVPS shall then resume payment to RESELLER.
(I) RESELLER holds no liability for any referred Merchant to TVPS except in the event that RESELLER and or any of its employees, or agents is attributed to the willful deceit, collusion, breach of this Agreement, or any other fraudulent act, as may be determined by any of the Members or those having authority or jurisdiction in these matters. Furthermore, and in such an event, TVPS shall have full recourse against RESELLER, and RESELLER shall be one hundred percent (100%) liable to TVPS for the full face value of any Merchant losses, to include Reversals/Refunds, chargebacks, losses, fines or fees, attorney fees, and court fees directly or indirectly related or attributable to the referred Merchant. In such an event TVPS is under no further obligation to pay RESELLER any Commissions/Residuals whatsoever for the referred Merchant.
(J) RESELLER authorizes TVPS, its authorized Vendors and/or PBM[s] to deposit Commissions/Residuals directly into RESELLER’s authorized deposit account, by electronic funds transfer (ACH), less any deduction amounts for RESELLER’s obligations to TVPS under this Agreement if any. RESELLER’s Commissions/Residuals, as set forth in the RESELLER Schedule A – Buy Rates & Compensation Splits, shall be paid after TVPS has received the funds and has reconciled such funds. RESELLER understands that TVPS will only pay out Commissions/Residuals when TVPS is paid. Due to the various relationships and time zones; pay schedules may vary accordingly. Compensation is generally paid out on the 20th day of each month for the prior months’ payment processing activities.
(K) RESELLER shall have sixty (60) days, from the receipt of any Commissions/Residuals, to notify TVPS of any errors in the payment amounts. Should RESELLER not notify TVPS within the sixty (60) day time period, RESELLER shall be deemed to have waived any dispute related to such Commissions/Residuals and may not, in the future, contest the amount it was paid or seek reimbursement for any discrepancies. Upon receipt of Notice, TVPS shall have sixty (60) days to correct any errors and make adjustments if applicable. TVPS shall have the right of offset against any funds credited to or owing from TVPS to RESELLER for any obligation of RESELLER to TVPS, including but not limited to, obligations of RESELLER under this Agreement. This right of offset may be exercised by TVPS at any time when the obligations of RESELLER to TVPS are then due.
(L) Any disclosed Commissions/Residuals plans provided to RESELLER by TVPS, as set forth in RESELLER Schedule A – Buy Rates & Compensation Splits shall be held in strict confidence by RESELLER and not shall not intentionally or unintentionally shared with competing Merchant Service Providers/Independent Sales Organizations or any other person or entity not party to this Agreement.
SECTION FOUR – TERM AND TERMINATION
4.1 Term. The initial term of this Agreement shall be for a period of three (3) years, commencing on the date of TVPS’s Approval. This Agreement shall thereafter be automatically renewed for additional terms of one (1) year each unless either Party notifies the other no later than thirty (30) days prior to the end of the current term that it does not wish to renew this Agreement.
4.2 Default. Either Party shall have the right to terminate this Agreement at any time if:
(a) The other Party breaches any of the provisions of this Agreement and fails to cure such breach within thirty (30) days of its receipt of written notice thereof from the non-breaching party; or
(b) The other Party (i) fails to pay its debts or perform its obligations in the ordinary course of business as they mature; (ii) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or assignment or composition for the benefit of creditors.
4.3 Failure to Comply with Rules, RESELLER Covenants. TVPS may immediately terminate this Agreement in the event of (i) any material default knowingly or intentionally caused directly or indirectly by RESELLER with respect to its obligations to comply with this Agreement, TVPS’s policies, and/or the Rules if TVPS reasonably determines that the default is of such a serious nature that an opportunity to cure such default is not practical or warranted, and/or (ii) RESELLER’s actions that damage the goodwill and reputation of TVPS, its authorized Vendors and PBM[s].
4.4 Regulatory Demand. If any card association/organization or any federal, state or other type of regulatory agency having jurisdiction over the subject matter of this Agreement makes a demand that either TVPS, its authorized Vendors and PBM[s] discontinue the Merchant Services, either Party in its sole discretion may terminate this Agreement upon written notice to the other, in which case neither party shall be deemed to be in default by reason of such termination.
4.5 Compensation to RESELLER Following Termination. TVPS agrees to make payments to RESELLER as set forth in this Agreement for any Merchant obtained by TVPS through RESELLER’s performance of this Agreement for any period of time during which such Merchant continues to generate revenue to TVPS. TVPS shall have no further obligation to make any payments to RESELLER under this Agreement once RESELLER’s monthly payment falls below one hundred dollars ($100.00). Further, if commercially practical, TVPS agrees that any sale, transfer, or assignment of Merchant Accounts shall include a written obligation that the new owner and/or assignee continue said residual payments to RESELLER under the same terms and conditions, or upon the discretion of RESELLER, RESELLER may choose to receive its pro-rata share of the proceeds.
SECTION FIVE - OBLIGATIONS
5.1 Confidential Information. The Parties acknowledge that in their performance of their duties hereunder, either Party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Merchant Services and the know-how, technology, software, systems, techniques, customer lists, or business or marketing plans related thereto (collectively, the "Confidential Information") all of which are confidential and proprietary to, and trade secrets of, the disclosing Party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing Party; (ii) becomes public knowledge or known to the receiving Party after disclosure by the disclosing party other than by breach of the receiving Party's obligations under this section or by breach of a third party's confidentiality obligations; (iii) was known by the receiving Party prior to disclosure by the disclosing party other than by breach of a third party's confidentiality obligations, or (iv) is independently developed by the receiving Party. As a condition to the receipt of the Confidential Information from the disclosing Party, the receiving Party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing Party's Confidential Information; (ii) not use the disclosing Party's Confidential Information in any fashion except to perform its duties hereunder or with the disclosing Party's express prior written consent; (iii) disclose the disclosing Party's Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving Party's internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving Party shall promptly notify the disclosing Party of any unauthorized disclosure or use of the Confidential Information. The receiving Party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure.
5.2 Indemnification. Unless otherwise stated in this Agreement, each Party shall indemnify and hold the other Party harmless from and against any and all claims, demands, loss (financial or otherwise), damage, liabilities, costs, fees, increased taxes or expenses (including without limitation, court costs and reasonable attorneys’ fees), which may be incurred or which may be claimed by any person as a result of:
(a) acts or omissions of the other Party, its directors, officers, employees or agents relating to the exercise of, or the failure to exercise, its obligations under this Agreement, including, but not limited to, any representation to any Merchant and any negligence, fraud, or misrepresentation by the other Party, its officers, directors or salespeople, or
(b) any breach of this Agreement or any other agreement between RESELLER and TVPS.
5.3 Disclaimer of All Warranties. THE MERCHANT SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. TVPS SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO RESELLER AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TVPS OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF TVPS’S OBLIGATIONS.
5.4 Limitation of Liability. UNLESS OTHERWISE STATED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE MERCHANT SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.5 Taxes. Each Party shall pay, indemnify and hold the other harmless from (i) any sales, use, excise, import or export, value-added, GST, or similar tax or duty, and any other tax or duty not based on the applicable Parties income, and (ii) all government permit fees, customs fees and similar fees which the applicable Party may incur with respect to this Agreement. Such taxes, fees, and duties paid by the respective Party shall not be considered a part of, a deduction from, or an offset against, payments due to the respective Parties hereunder.
5.6 RESELLER represents and warrants to TVPS as follows:
(a) RESELLER has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against RESELLER in accordance with its terms and no provision requiring RESELLER's performance is in conflict with RESELLER's obligations under any charter or any other agreement (of whatever form or subject) to which RESELLER is a Party or by which it is bound.
(b) If other than a sole proprietorship, RESELLER is duly organized, authorized and in good standing under the laws of the state of its organization and is duly authorized to do business in all other states in which RESELLER's business make such authorization necessary or required.
(c) Except as otherwise disclosed in writing by RESELLER to TVPS on or before the effective date of this Agreement, RESELLER has not been subject to any (i) criminal conviction (excluding traffic misdemeanors or other petty offenses); (ii) bankruptcy filings; (iii) Internal Revenue Service liens; (iv) federal or state regulatory administrative or enforcement proceedings; (v) restraining order, decree, injunction or judgment in any proceeding or lawsuit alleging fraud or deceptive practices; or, (vi) industry-related restrictions.
5.7 Audit Rights. TVPS will have the right to audit RESELLER if required by the Rules. Additionally, in the event of any good faith dispute concerning the residuals/compensation paid to RESELLER, TVPS shall make available to RESELLER, upon reasonable notice, all applicable, non-sensitive, accounting information pertaining to RESELLER.
5.8 Non-Solicitation of Merchants. Without TVPS’s prior written consent (which consent may be withheld in TVPS’s sole and absolute discretion), RESELLER shall not knowingly cause or permit any of their employees, agents, principals, affiliates, subsidiaries or any other person or entity (i) to solicit or provide services that compete with the Merchant Services to any Merchant that has been accepted by TVPS; (ii) to solicit or otherwise cause any Merchant that has been accepted by TVPS or its vendors to terminate its participation in any of the Merchant Services; or (iii) to solicit or market services to any Merchant that is already directly or indirectly provided any of the Merchant Services by TVPS. This section shall apply during the term of this Agreement and for five (5) years after any termination, cancellation or expiration of this Agreement. RESELLER will remain responsible for resulting damages from such prohibited solicitation.
5.9 Intellectual Property. "Intellectual Property" means all of the following owned by a Party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a Party in its Intellectual Property shall be defined, collectively, as "Intellectual Property Rights." Other than the express licenses granted by this Agreement, neither Party grants a right or license to the other by implication, estoppel or otherwise to the respective Parties Intellectual Property Rights. Each Party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of TVPS, in the Merchant Services) and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. Each Party shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for that Party’s Intellectual Property and any rights incorporated therein. The Parties will cooperate in pursuing such protection, including without limitation executing and delivering such instruments as may be required to register or perfect such interests in any Intellectual Property Rights and any assignments thereof. RESELLER shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from TVPS in connection with this Agreement.
5.10 Non-Solicitation
A. During the period that this Agreement is in effect and for the five (5) year period immediately following termination of this Agreement, neither Party shall directly or indirectly through another entity (i) induce or attempt to induce any employee of, or consultant to, either Party or their subsidiaries to leave the employ of, or consultancy to, each respective Party or their subsidiaries, or in any way interfere with the relationship between the Parties and/or their respective subsidiaries and any employee or consultant thereof, (ii) hire any person who was an employee of, or consultant to, either Party or their subsidiaries at any time during the twelve-month period immediately prior to the date on which such hiring would take place without the written consent of the respective Party herein (it being conclusively presumed by the Parties so as to avoid any disputes under this section that any such hiring within such twelve-month period is in violation of clause (i) above; (iii) call on, solicit or service any customer, referral partner,
agent or other business relation of each Party or their respective subsidiaries in order to induce or attempt to induce such person to cease doing business with the respective Party or its subsidiaries, or in any way interfere with the relationship between any such customer, referral partner, agent or other business relation and each Party or its subsidiaries (including, without limitation, making any negative statements or communications about each Party or its subsidiaries).
B. If, at the time of enforcement of the covenants contained in this section above (the “Protective Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the Parties hereto agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the Protective Covenants to cover the maximum duration, scope, and are permitted by law. The Parties agree that the Protective Covenants are reasonable in terms of duration, scope, and area restrictions and are necessary to protect the goodwill of the Parties’ respective business and agree not to challenge the validity or enforceability of the Protective Covenants.
SECTION SIX - GENERAL PROVISIONS
6.1 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.
6.2 Drafting. No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All Parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the Parties and therefore any ambiguity or uncertainty shall be interpreted accordingly.
6.3 Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. Any consent by any Party to, or waiver of, a breach by the other Party, whether express or implied, shall not constitute consent to, waiver of, or excuse for any different or subsequent breach.
6.4 Assignment. Neither Party shall assign, delegate, subcontract, license, franchise, or in any manner attempt to extend to any third party any right or obligation under this Agreement except as otherwise permitted herein without the prior written consent of the other Party; provided, however, TVPS may assign this Agreement and its rights hereunder to a purchaser of all or substantially all of its assets or equity. Notwithstanding any other provisions in this Agreement, RESELLER, if an individual, upon the occurrence of his/her death, may pass his/her rights to residuals under this Agreement by will, trust or any other method to anyone she/he chooses in his/her sole and absolute discretion. RESELLER may assign or sell its rights to its compensation under this Agreement to a third party with prior consent from TVPS; provided, however, TVPS shall first have the right to purchase such compensation rights from RESELLER. In the event RESELLER seeks to sell its right to compensation to a third party, it shall provide TVPS with written notice of the material terms of the third party offer, and TVPS shall have 30 business days within which to notify RESELLER if it will match said third party offer. If TVPS elects to match the third party offer, RESELLER shall sell its rights to compensation to TVPS. In the event TVPS does not elect to exercise this right of first refusal, RESELLER may sell RESELLER's compensation to the third party offeror on the same terms and conditions as set forth in the written notice to TVPS. In the event RESELLER assigns, or sells its compensation without the prior consent of TVPS, TVPS is under no further obligation to pay any compensation whatsoever.
6.5 Amendments. Except as otherwise provided in this Agreement, no provision of this Agreement may be amended, modified or waived except by a written agreement signed by TVPS.
6.6 Notices. All notices, demands, and other communication required or permitted hereunder shall be made in writing and shall be deemed to have been duly given if delivered by hand or mailed, postage prepaid, certified, registered, first-class mail, and/or addressed to the addresses set forth on the incorporated Application. Notices can also be completed by email, read receipt requested. If to TVPS, email to [email protected] or U.S. mail address at 3435 E. Thousand Oaks Blvd., #6985, Westlake Village, CA 91359. If to RESELLER, an email and/or U.S. mail will be sent to the RESELLER as provided to TVPS on the RESELLER APPLICATION. Notice of change of address shall be effective only when given in accordance with this section. All notices complying with this section shall be deemed to have been received on the date of delivery or on the third (3rd) business day after mailing or emailing (collectively “Notice”).
6.7 Section Headings. The section headings contained in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement.
6.8 Counterparts/Electronic Signatures/Facsimile Signatures. This Agreement and all corollary and subsequent Schedules, Amendments, Addendums and other documents may be executed in one or more counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. The signatures to this Agreement may be evidenced by electronic signature via any approved and legal entity providing legal electronic signature, (as provided by law), services, scanned copies reflecting the Party’s signatures hereto, facsimile copies reflecting the Party’s signatures hereto, and any such e-signatures, scans and/or facsimile copies shall be sufficient to evidence the signature of such Party as if it were an original signature.
6.9 Entire Agreement; Binding Effect. This Agreement, including all schedules, exhibits, and attachments thereto, sets forth the entire agreement and understanding of the Parties hereto in respect of the subject matter contained herein and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any Party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the Parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities, not a party to this Agreement, any rights or remedies under or by reason of this Agreement.
6.10 Arbitration. All disputes arising from this Agreement will be submitted to and settled by final and binding arbitration. The arbitration will take place in Los Angeles, California, and will apply the governing law of this Agreement. The final and binding arbitration will be performed by a panel of three arbitrators in accordance with and subject to the Commercial Arbitration Rules of the AAA (or other respected Arbitration resources as the Parties may mutually agree) then in effect. Following Notice of a Party’s election to require arbitration, each Party will, within thirty (30) days, select one arbitrator; and those two arbitrators will, within thirty (30) days thereafter, select a third arbitrator. If the two arbitrators are unable to agree on a third arbitrator within thirty (30) days, the AAA will, within thirty (30) days thereafter, select the third arbitrator. The decision of the arbitrators will be final and binding, and judgment on the award may be entered in any court of competent jurisdiction. The arbitrators will be bound by the warranties, limitations of liability, and other provisions of this Agreement. Notwithstanding the foregoing, each Party may seek injunctive relief in a court of competent jurisdiction, where appropriate, to protect its rights pending the outcome of the arbitration.
6.11 Jurisdiction; Venue; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California (irrespective of its choice of law principles). The Parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the Parties hereto shall be brought in federal or state court in Los Angeles, California. Each Party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such Party and each Party hereby submits to the exclusive personal jurisdiction and venue of such courts.
6.12 Attorney’s Fees. Should suit or arbitration be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, including expert witness fees and fees on any appeal.
6.13 Survival. All representations, covenants and warranties shall survive the execution of this Agreement, and sections 2.2, 3.1, 4.4, 4.5, 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10, 6.4, 6.10, 6.11, 6.12 and 6.13 shall survive termination of this Agreement.
IN WITNESS THEREOF, this agreement has been duly executed by the Parties hereto, effective as of the date and year have written below.
