White Label Reseller Agreement
This White Label Reseller Agreement (“Agreement”) is made effective as of the date set forth below (the “Effective Date”) by and between Enable, Inc., a Texas corporation whose principal place of business is 25132 Oakhurst Drive, Suite 206, Spring, Texas 77386 (“Enable”), and the person or entity identified below (“Reseller”).
WHEREAS, Enable operates a proprietary multi‑lender point‑of‑sale financing network and technology infrastructure that is subject to regulatory, underwriting, and compliance requirements for consumer credit transactions (the “Enable Platform”); and
WHEREAS, Enable wishes to expand market penetration by granting qualified resellers access to the Enable Platform, subject to strict compliance and commercial standards; and
WHEREAS, the parties desire to establish the terms and conditions upon which Reseller shall resell the Enable Platform.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. APPOINTMENT AND MERCHANT RELATIONSHIP
1.1 Appointment.
Enable operates a proprietary multi‑lender point‑of‑sale financing network and technology infrastructure (the “Enable Platform”), which includes lender integrations, credit decisioning, data processing, servicing tools, and merchant and borrower portals. Enable hereby appoints Reseller, on a non‑exclusive basis, as a distribution and brand partner to market and resell access to the Enable Platform to Merchants under Reseller’s branding, subject to the terms of this Agreement.
1.2 Relationship With Merchants.
The parties acknowledge that Merchants interact with both Reseller and Enable in different capacities:
(a) Reseller’s Commercial Role. Reseller is responsible for identifying, marketing to, and contracting with Merchants for Reseller‑branded services. As between the parties, Reseller owns the commercial, marketing, and sales relationship with Merchants for Reseller’s offerings (including any fees Reseller charges for onboarding, consulting, account management, or other non‑Enable services).
(b) Enable’s Network Role. Enable is responsible for operating the Enable Platform and the underlying financing network, including lender relationships, technology infrastructure, data processing, servicing tools, and compliance controls. To perform these functions, Enable maintains a direct platform and data relationship with each Merchant that is onboarded to the Enable Platform.
(c) Joint Customers; Primary Platform Holder. For the duration of this Agreement, Merchants using the Enable Platform are mutual clients of both parties: (i) Reseller as the front‑end commercial and branding partner; and (ii) Enable as the operator of the financing network and holder of the Merchant’s Platform account and related data. To ensure continuity of financing services, borrower support, and regulatory and operational integrity, Enable is the primary holder of the Merchant’s Enable Platform account and Merchant Data for all matters relating to the Platform and underlying financing activity.
(d) No Impact on Other Reseller Business. Nothing in this Section 1.2 limits Reseller’s ability to (i) maintain or expand its independent relationships with Merchants outside the Enable Platform, or (ii) provide non‑competing products and services to Merchants (such as processing, marketing services, or other offerings unrelated to the Enable Platform), provided such activities do not use or rely on Enable’s Confidential Information, Merchant Data, or the Enable Platform.
1.3 Merchant Data.
(a) Ownership. Enable owns all data generated by, stored in, or derived from the Enable Platform (“Merchant Data”).
(b) Reseller Access. Reseller is granted a limited, revocable license to access Merchant Data solely to perform its duties under this Agreement.
1.4 Network Continuity.
The Enable Platform operates as a unified financing network to which Merchants are onboarded as network participants. Enable retains the exclusive right to maintain and manage Merchant participation in this network, including continuing to provide the Enable Platform to Merchants directly if this Agreement is terminated, assigned, or Reseller otherwise ceases performance. Merchant participation in the network—including lender connections, transaction routing, decisioning and workflow configurations, platform integrations, and Enable‑provided tooling used by Merchants and their teams— vests in Enable as the Network Operator and is not transferred, revoked, or terminated solely because Reseller’s marketing relationship ends.
1.5 Proprietary Information and Platform Ownership.
The parties agree that at all times, Enable owns all right, title and interest to the Enable Platform, all alterations, modifications, improvements, derivatives and the documentation provided to or by Reseller in connection with this Agreement. Reseller shall not remove or alter any copyright notices or proprietary legends affixed by Enable to the Enable Platform. Enable shall also have sole and exclusive ownership of all right, title, and interest in and to its proprietary information and materials, including any derivative works thereof, including ownership of all copyrights, trademarks, service marks, patents, and trade secrets pertaining thereto (collectively, the “Proprietary Information“). The Enable Platform is expressly included within the meaning of the Proprietary Information. Reseller may use the Enable Platform and Proprietary Information, subject only to the rights and privileges expressly granted by Enable for purposes of this Agreement.
1.6 Platform Service and Availability.
Enable may provide the Enable Platform directly or through third party vendors. In doing so, Enable shall use commercially reasonable efforts to provide the Enable Platform and maintain it in an uninterrupted and error-free fashion consistent with its practices in effect as of the date of this Agreement. However, the parties acknowledge that the Enable Platform is a computer network-based service which may be subject to outages, data loss and delay occurrences. In such an event, Enable shall use commercially reasonable efforts to diligently and promptly remedy any and all material interruptions. Nonetheless, Enable will not be liable in any manner for any data losses, interruptions, outages, or other delay occurrences relating to the Enable Platform by Enable or its vendors.
1.7 White-Label Hosting and Customization.
If agreed to by the parties, Enable will host the Enable Platform using a mutually acceptable domain name. Enable will modify the applicable HTML pages (and login page) within its hosted infrastructure such that, when logging in, Reseller’s private label merchants will see only the Reseller brand displayed in the hosted environment. Reseller will be responsible for integration of the Enable Platform into the end user operating systems for all Merchants that are approved by Enable for the Enable Platform.
1.8 Merchant Agreements and Third Party Beneficiary.
Reseller shall, as determined by Enable, enter into the agreement for the Enable Platform for the Merchants acceptable to Enable in its reasonable discretion or enter into an agreement provided by Enable, each of which will include third party beneficiary language designating Enable as a third party beneficiary, as set forth in Schedule 1.
1.9 Compliance Obligations.
Reseller shall comply at all times with, and require Merchants and/or any third party through whom Reseller may offer the Enable Platform (“Other Resellers“) to comply with all applicable and then-current legal obligations and security measures including without limitation those issued by the United States Government, Federal, State and Municipal laws and ordinances, Card Association, the Federal Trade Commission, the PCI Security Standards Council, and any other governing body. Reseller shall comply with, and require Merchants and/or Other Resellers to comply with, all Enable security protocols, notices and safeguards in effect during the term of this Agreement. Failure to comply with these obligations shall constitute a material breach triggering Enable’s right to terminate immediately.
1A. DEFINITIONS
“Introduced Merchant” or “Referred Merchant” means any merchant that Reseller introduces to Enable and that is subsequently approved by Enable.
“Active Merchant” means a Referred Merchant that has processed at least one financing application within the prior calendar quarter or remains a registered Platform user without requesting deactivation.
“Competitor” means an entity whose primary business is providing point-of-sale BNPL or consumer financing services similar to the Enable Platform. Entities providing merchant cash advances, business loans, or payment processing are NOT Competitors.
“Merchant Data” means all data generated by, stored in, or derived from the Enable Platform.
“Transition Period” means the thirty (30)-day period following termination during which Reseller may notify merchants of the termination of Reseller’s services and the ongoing availability of the Enable Platform under Enable’s direct operation.
2. INDEPENDENT CONTRACTORS
The relationship of Enable and Reseller is that of independent contractors. Neither party nor its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of the other party, nor do they have any authority to bind the other party by contract or otherwise to any obligation. Furthermore, Reseller acknowledges that Enable is not a fiduciary, agent, or joint venture partner of Reseller. Enable’s role is limited to providing access to the Enable Platform subject to the terms of this Agreement, and Enable makes no representation that it will act in the best interests of Reseller beyond its express contractual obligations.
3. PLATFORM LICENSE AND RESTRICTIONS
3.1 License Grant.
Enable grants Reseller a limited, non-exclusive, non-transferable license during the Term to access and use the Enable Platform solely to market and resell access to Merchants in accordance with this Agreement. This license terminates immediately upon termination of this Agreement.
3.2 Ownership.
Enable retains all right, title, and interest in and to the Enable Platform, including all software, interfaces, workflows, APIs, and intellectual property rights therein. This Agreement transfers no ownership rights to Reseller.
3.3 Restrictions.
Reseller shall not, and shall not permit any third party to:
(a) reverse engineer, decompile, decrypt, extract, or attempt to derive source code, underlying algorithms, or any process or procedure from the Enable Platform in order to ascertain, derive, and/or appropriate for any reason or purpose, any information contained in the Enable Platform;
(b) access or use the Enable Platform to build, support, or benchmark a competing product or service;
(c) transfer, assign, or sublicense its rights under this Agreement without Enable’s prior written consent;
(d) observe or test the Platform’s functionality for competitive intelligence purposes;
(e) rent, lease, modify, alter, or time share the Enable Platform;
(f) prepare derivative works based upon the Enable Platform; or
(g) remove any proprietary notices or labels from the Enable Platform.
3.4 Competitive Development Notice.
If Reseller intends to develop or support a competing financing platform, Reseller must provide Enable with thirty (30) days’ prior written notice. For clarity, nothing in this Section 3.4 waives or modifies the restrictions on reverse engineering, benchmarking, or misuse of Proprietary Information set forth in Section 3.3. During this thirty-day period, Enable may terminate this Agreement immediately without penalty and without liability for any future commissions.
4. FEES AND PAYMENT
4.1 Fees and Compensation.
Reseller shall pay fees for the Enable Platform and be entitled to compensation as set forth in the attached Exhibit A. The fee plan set forth in Exhibit A shall be held in strict confidence by Reseller.
4.2 Fee Changes.
Enable shall have the right to change the fee plan as set forth in Exhibit A for any future business submitted under this Agreement at any time in its sole discretion by providing sixty (60) days’ written notice to Reseller. Such notice shall be provided via email to Reseller’s registered contact information.
4.3 Payment Terms and Automatic Deduction.
Reseller agrees to pay Enable for the Enable Platform on a monthly, quarterly, or annual basis as determined by Enable via automatic deduction of all applicable fees directly from Reseller’s bank account. Reseller shall provide Enable with all necessary bank account, routing and related information. Reseller authorizes Enable to deduct applicable monthly fees via Automated Clearing House (ACH) debit from Reseller’s designated bank account. Enable shall provide Reseller with an invoice or notice at least five (5) business days prior to each deduction, specifying the exact amount, date, and billing period covered.
4.4 Fee Disputes and Corrections.
Reseller shall have sixty (60) days from the receipt of any invoiced fees to notify Enable in writing of any errors in fees invoiced and debited. If Reseller does not notify Enable within the sixty (60) day time period, Reseller shall be deemed to have accepted that billing period’s charges and waives the right to dispute that specific period. However, Reseller retains the right to dispute fees based on: (i) Enable’s billing system errors discovered later; (ii) mathematical errors in fee calculation; or (iii) changes to the fee schedule that retroactively apply to that billing period.
4.5 Offset Rights.
Enable may offset any amounts owed by Reseller (including Early Termination Fees, indemnification obligations, or other breaches of this Agreement) against commission payments, provided Enable provides written notice to Reseller specifying the offset and providing Reseller with thirty (30) days to dispute the offset before implementation.
5. CONFIDENTIALITY AND PROPRIETARY INFORMATION
5.1 Confidentiality Obligations.
Each party agrees to protect the other’s Confidential Information with reasonable care. “Confidential Information” includes the Enable Platform’s non-public functionality, workflows, integration methods, algorithms, strategic plans, and any other proprietary business information disclosed by one party to the other.
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; (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 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.
5.2 Confidentiality Breach Notification.
The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate with and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure.
5.3 Survival of Confidentiality Obligations.
Confidentiality obligations survive termination indefinitely regarding trade secrets and platform insights, and for three (3) years regarding other business information.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Definition of 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.”
6.2 Ownership of Enable’s IP.
Other than the express licenses granted by this Agreement, Enable grants no right or license to Reseller by implication, estoppel or otherwise. Enable shall own all right and title to (i) the Enable Platform, (ii) any modifications, improvements, suggested changes or other changes to the Enable Platform made by Reseller, and (iii) any Intellectual Property Rights of Enable. 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 Enable in connection with this Agreement.
6.3 IP Cooperation.
Enable (and not Reseller) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for the Enable Platform and any Intellectual Property Rights incorporated therein. Reseller will cooperate with Enable in pursuing such protection, including without limitation executing and delivering to Enable such instruments as may be required to register or perfect Enable’s interests in any Intellectual Property Rights and any assignments thereof.
6.4 Reseller’s IP.
Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of Enable, in the Enable Platform) and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein.
7. TERM AND TERMINATION
7.1 Initial Term and Renewal.
The initial term of this Agreement shall be for a period of two (2) years, commencing on the Effective Date. This Agreement shall thereafter be automatically renewed for additional terms of one (1) year each unless either party notifies the other no later than ninety (90) days prior to the end of the current term that it does not wish to renew this Agreement.
7.2 Termination for Cause.
(a) Cure-able Breaches. Enable may terminate this Agreement if Reseller commits a material breach and fails to cure such breach within fifteen (15) days of written notice. Cure-able breaches include failure to pay fees, failure to comply with reporting requirements, and operational non-compliance.
(b) Non-Curable Breaches. Enable may terminate immediately upon written notice if Reseller: (i) Commits fraud or willful misconduct; (ii) Violates Platform restrictions or actively markets or sells a directly competing POS financing platform to any Merchant that is active on the Enable Platform; (iii) Discloses Enable trade secrets or Merchant Data to unauthorized parties; (iv) Violates compliance obligations creating material risk to Enable or lenders; (v) Becomes insolvent or files for bankruptcy; or (vi) Is acquired by a Competitor.
(c) Change of Control. Enable may terminate immediately if Reseller undergoes a Change of Control (ownership change exceeding 20% of equity) and the acquirer is a Competitor. Reseller shall notify Enable of any Change of Control within ten (10) days.
7.3 Termination Compensation.
(a) Voluntary Termination by Reseller. If Reseller voluntarily terminates with ninety (90) days’ notice: (i) Residual commissions continue for twelve (12) months on active Referred Merchants; (ii) Commission rate reduced to 75% of Exhibit A rates.
(b) Termination Without Cause by Enable. If Enable terminates without Cause: (i) Residual commissions continue for the remainder of the current Term plus one (1) additional year; (ii) Commission rate remains at 100% of Exhibit A rates; (iii) Enable shall provide sixty (60) days’ notice.
(c) Termination for Cure-able Breach (Not Cured). If Enable terminates after Reseller fails to cure a cure-able breach: (i) Residual commissions continue for twelve (12) months; (ii) Commission rate reduced to 75% of Exhibit A rates.
(d) Termination for Non-Curable Breach. If Enable terminates for non-curable breach (fraud, competitive misuse, confidentiality violation, insolvency, acquisition by Competitor): (i) Reseller forfeits all future commissions.
(e) Early Termination Fee. If Reseller commits a non-curable breach or terminates without proper notice, Enable may charge a termination fee equal to the average monthly fees charged to Reseller for the previous twelve (12) months multiplied by three (3) months.
(f) Summary Table.
Termination Type | Notice | Residuals | Rate |
Voluntary by Reseller | 90 days | 12 months | 75% |
Without Cause by Enable | 60 days | Term + 1 year | 100% |
Cure-able Breach (not cured) | 15 days | 12 months | 75% |
Non-Curable Breach | Immediate | None | N/A |
(g) Active Merchant Definition. A Merchant is “active” if it has processed at least one financing application within the prior calendar quarter or remains a registered Platform user without requesting deactivation.
(h) Payment. Enable shall provide final commission reconciliation within thirty (30) days of termination and continue monthly residual payments on the same schedule as during the Term.
(i) Transition Support Upon Termination. Upon termination of this Agreement, Enable shall: (i) Provide Reseller with written notice of termination and explanation of the transition process; (ii) Allow Reseller thirty (30) calendar days to notify merchants (via Reseller’s own communications, not through Enable) that Reseller’s services are ending; (iii) During this 30-day period, Enable will not actively solicit those merchants to sign new commercial agreements, but Enable retains the right to respond to merchants’ inbound requests for continued Platform access; (iv) After 30 days, Enable has no further obligation to Reseller and owns the merchant relationships free and clear; (v) Reseller remains entitled to residual commissions per Section 7.3 for all merchants active at termination, regardless of whether they continue on the Platform post-transition.
7.4 Mutual Non‑Circumvention.
(a) Enable’s Obligations. Acknowledging the dual relationship described in Section 1.2, Enable agrees that during the Term—and solely provided Reseller is not in material breach of this Agreement—Enable shall not knowingly induce Merchants Introduced by Reseller to terminate their commercial relationship with Reseller for the purpose of excluding Reseller from applicable commissions.
(b) Permitted Activities. Nothing in this Section 7.4 restricts Enable from: (i) communicating directly with Merchants regarding the Platform, compliance, risk, or support; (ii) offering additional Enable products or features to Merchants; (iii) continuing to service Merchants directly in the event of this Agreement’s expiration or termination; or (iv) enforcing its rights under its direct agreements with such Merchants.
(c) Termination of Restriction. The restrictions in Section 7.4(a) shall automatically and immediately terminate upon the expiration or termination of this Agreement for any reason. Upon such termination, Enable’s right to continue the merchant relationship shall be governed solely by Section 1.4 (Service Continuity).
7.5 Dormancy Rule for Merchant Re-Enrollment.
(a) Re-Enrollment Restriction. If a Merchant was enrolled through Reseller and subsequently seeks to enroll through another Reseller, Enable shall NOT permit re-enrollment unless: (i) The Merchant has not processed applications for three (3) consecutive months; OR (ii) The original Reseller provides written consent.
(b) Notice. Enable shall notify the original Reseller of any re-enrollment request with five (5) business days to object. If Reseller does not respond, Enable may proceed with re-enrollment.
(c) Commission Treatment. Upon re-enrollment, the original Reseller forfeits future commissions on that Merchant.
8. NON-SOLICITATION AND ASSIGNMENT
8.1 Non-Solicitation.
(a) Mutual Obligations During Term. During the Term of this Agreement, each party shall not directly or indirectly through another entity (i) call on, solicit or service any customer, supplier, licensee, licensor, consultant, contractor or other business relation of the other party or its respective subsidiaries in order to induce or attempt to induce such person to cease doing business with the other party or its subsidiaries, or in any way interfere with the relationship between any such customer, supplier, licensee, licensor, consultant, contractor or other business relation and the other party or its subsidiaries (including, without limitation, making any negative statements or communications about the other party or its subsidiaries); or (ii) call on, solicit, or take away or attempt to call on, solicit, or take away any of the other party’s customers and vendors on whom the party called or became acquainted during its relationship with the other party, either on its behalf or on behalf of another person, firm, or corporation.
(b) Reseller Non-Solicitation Post-Term. For eighteen (18) months following termination, Reseller shall not solicit any Merchant that Reseller Introduced and that was active on the Enable Platform at termination to: (i) Migrate to or facilitate a relationship with a Competitor’s financing platform; or (ii) Discontinue Enable services.
(c) Permitted Activity. Reseller may contact Introduced Merchants to offer non-competing products or services (e.g., merchant cash advances, processing) and may respond to inbound inquiries.
(d) Scope Limitation. Non-solicitation applies only to Active Merchants that Reseller personally Introduced.
8.2 Assignment Restrictions and Enable’s Assignment Rights.
(a) Reseller Assignment Restrictions. Reseller may not assign this Agreement or its rights hereunder without Enable’s prior written consent. Any unauthorized assignment is void and constitutes material breach.
(b) Enable’s Assignment Rights. Enable may assign this Agreement and its rights to a purchaser of all or substantially all of its assets or equity without Reseller’s consent.
8.3 Reseller Data Rights.
Reseller retains ownership of its independent merchant contact lists and business development data that were generated by Reseller prior to this Agreement and not derived from or using Enable’s Confidential Information. Reseller may use such data for non-competing business purposes, provided such use does not involve Enable’s Confidential Information, Platform, or Merchant Data.
9. DISCLAIMER OF WARRANTIES
THE ENABLE PLATFORM AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. ENABLE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO RESELLER AND ANY THIRD PARTIES 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 ENABLE OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ENABLE’S OBLIGATIONS. ENABLE MAKES NO WARRANTY THAT THE ENABLE PLATFORM WILL MEET RESELLER’S REQUIREMENTS OR THAT THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
10. LIMITATION OF LIABILITY
ENABLE, ITS PARTNERS, AND THIRD PARTY VENDORS SHALL NOT BE LIABLE TO RESELLER 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 ENABLE SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, 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 ENABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES SHALL ENABLE’S TOTAL LIABILITY TO RESELLER OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF TOTAL COMPENSATION PAID TO RESELLER OVER THE PREVIOUS SIX (6) MONTHS REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE.
11. INDEMNIFICATION
Reseller agrees to indemnify, defend, and hold harmless Enable, its employees, resellers, third party vendors, partners and agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees, expert witness fees and cost of defense) they may suffer or incur as a result of: (i) any failure by Reseller, Merchant or any employee, agent or affiliate of Reseller to comply with the terms of this Agreement; (ii) any warranty or representation made by Reseller being false or misleading; (iii) any representation or warranty made by Reseller or any employee or agent of Reseller to any third person other than as specifically authorized by this Agreement; (iv) any claims related to the Enable Platform or Reseller’s use thereof; (v) negligence or willful misconduct of Reseller, Merchants, or Reseller’s subcontractors, agents or employees; (vi) any alleged or actual violations by Reseller, Merchants, or Reseller’s subcontractors, employees or agents of any card association rules, governmental laws, regulations, or other legal obligations; (vii) Reseller’s breach of this Agreement; or (viii) fraud or misrepresentation by Reseller.
12. DISPUTE RESOLUTION AND GOVERNING LAW
12.1 Executive Negotiation.
All disputes arising under or in connection with this Agreement will initially be referred to the senior executives of each party. The senior executives will use their best efforts to resolve the dispute informally and amicably. If, after negotiating for thirty (30) days (or for some longer period if the parties agree), no resolution of the dispute is reached by the senior executives, the parties shall proceed to binding arbitration as set forth in Section 12.2.
12.2 Binding Arbitration.
Any controversy or claim arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, including determination of the scope or applicability of this agreement to arbitrate, shall be settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, except as specified herein.
(a) Venue and Arbitrator. The place of arbitration shall be Texas. The arbitration shall be decided by one (1) arbitrator.
(b) AAA Procedures. In applying the AAA’s Commercial Arbitration Rules, the parties agree to the following exceptions: (i) the procedures for Large, Complex Commercial Disputes shall not apply; and (ii) except for the direct exchange of documents, exhibits, and other information that the parties intend to submit at the arbitration hearing and the identification of witnesses that the parties intend to call at the arbitration hearing, there shall be no discovery unless ordered by the arbitrator upon a showing of critical need.
(c) Judgment on Award. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
12.3 Injunctive Relief.
Notwithstanding Section 12.2, Enable may seek immediate injunctive relief in any court of competent jurisdiction to protect its Intellectual Property rights, Confidential Information, or trade secrets from breach or threatened breach by Reseller.
12.4 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.
12.5 Venue for Non‑Arbitrated Disputes.
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 shall be brought in federal or state court in Texas. 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 and waives any objection that such courts are an inconvenient forum or that venue in such courts is improper, including any objection based on the doctrine of forum non conveniens.
13. GENERAL PROVISIONS
13.1 Waiver.
The failure of either party to this Agreement to object to or to take affirmative action with respect to any conduct of the other party which is in violation of the terms of this Agreement shall not be construed as a waiver of that conduct or any future breach or subsequent wrongful conduct.
13.2 Severability.
If any part, term or provision of this Agreement is declared and determined by any court or arbitrator to be illegal or invalid, such declaration and determination shall not affect the validity of the remaining parts, terms or provisions of this Agreement. The Agreement shall be reformed to the minimum extent necessary to comply with applicable law while preserving the intent of the parties.
13.3 Headings.
The various headings in this Agreement are inserted for convenience only and shall not affect this Agreement or any portion thereof.
13.4 Amendment and Modification.
No amendment or modification to this Agreement, nor any waiver of any rights hereunder, shall be effective unless assented to in writing and signed by authorized representatives of both parties. All amendments must be in writing; oral agreements shall have no effect.
13.5 Counterparts and Electronic Execution.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, all of which together shall constitute one and the same instrument. Execution by electronic or digital signature, including DocuSign, facsimile, or PDF, shall be deemed an original and shall be binding.
13.6 Survival of Provisions.
All representations, covenants and warranties shall survive the execution of this Agreement. The following sections shall survive termination of this Agreement: (i) Indefinitely: Sections 6 (Intellectual Property Rights), 9 (Disclaimer of Warranties), and confidential trade secrets as defined in Section 5; (ii) For three (3) years: Section 5 (Confidential Information – non-trade secret information); (iii) For eighteen (18) months: Section 8 (Non-Solicitation);
(iv) Indefinitely: Section 10 (Limitation of Liability), Section 11 (Indemnification), Section 12 (Dispute Resolution), and this Section 13 (General Provisions).
13.7 Attorney’s Fees and Costs.
In any action arising from the alleged breach of this Agreement, or to enforce this Agreement, the final prevailing party shall be entitled to recover its reasonable attorneys’ fees, expert witness fees, costs and expenses from the non-prevailing party.
13.8 Entire Agreement.
This Agreement, together with Exhibit A and Schedule 1, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, including but not limited to any statements made in marketing materials, on Enable’s website, or in sales presentations, 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. Reseller acknowledges that it has not relied on any such external representations in entering into this Agreement. No course of dealing or trade practice shall modify this Agreement.
13.9 Authority.
Each party represents and warrants that the individual executing this Agreement on its behalf is duly authorized and has the power and authority to enter into this Agreement on behalf of such party and to bind such party to the terms and conditions hereof.
SCHEDULE 1: REQUIRED LANGUAGE FOR RESELLER-MERCHANT AGREEMENTS
EXHIBIT A: FEE AND COMPENSATION SCHEDULE
[To be completed with specific fee structures, commission rates, and payment schedules]
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