WHITE LABEL RESELLER AGREEMENT
1. Appointment
(a) Subject to the terms and conditions of this Agreement, Enable hereby appoints Reseller as a reseller of the Enable Platform. Reseller shall interact with entities and individuals in order to obtain information from them as to whether they are interested in using the Enable Platform. Reseller will obtain all information and documentation reasonably required by Enable. Reseller acknowledges that all Merchants are to be approved by Enable in its sole discretion and Merchants will be able to utilize the Enable Platform effective only upon such approval.
(b) 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.
(c) 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 them 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.
(d) Limitations on Rights Granted. Except as expressly provided to the contrary in this Agreement, Reseller shall not, and shall not knowingly cause or permit any non-party, to use or reproduce the Enable Platform. Reseller shall not, and shall not knowingly cause or permit any non-party, to disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Enable Platform, or otherwise apply any procedure or process to the Enable Platform in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Enable Platform or any algorithm, process, procedure or other information contained in Enable Platform. Except as expressly authorized herein, Reseller may not rent, lease, assign, sublicense, transfer, modify, alter, or time share the Enable Platform.
(e) Fees in General. Reseller shall pay fees for the Enable Platform and be entitled to compensation as set forth on the attached Exhibit A. The plan set forth in Exhibit A shall be held in strict confidence by Reseller. Enable shall have the right to change the plan as set forth in Exhibit A at any time in its sole discretion by providing thirty (30) days notice to Reseller. Reseller agrees to pay Enable for the Enable Platform on a monthly, quarterly, or annual basis as determined by Enable via deduction of all applicable fees directly from Reseller’s bank account. Reseller shall provide Enable with all necessary bank account, routing and related information. Enable will deduct automatically all such fees and charges within a time frame left to the full and singular discretion of Enable, regardless of the status of the Reseller’ bank account. Reseller shall have sixty (60) days from the receipt of any invoiced fees to notify Enable 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 without question such payment and may not in the future contest the amount it was debited or seek reimbursement for any discrepancies. Upon receipt of notice, Enable shall have thirty (30) days to correct any errors.
(f) 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(s) operating systems for all Merchant(s) that are approved by Enable for the Enable Platform. 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 as set forth in Schedule 1.
(g) 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.
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.
3. Term and Termination
(a) The initial term of this Agreement shall be for a period of two (2) years, commencing on the date first set forth on the application. 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. Either party may terminate this Agreement if the other party commits a material breach of this Agreement that is not cured within fifteen (15) days of written notice. Enable may terminate this Agreement for any reason, or no reason at all, by providing Reseller with seven (7) days written notice.
(b) Effect of Termination. (i) Upon termination of this Agreement: (a) Reseller’s license to resell the Enable Platform shall be automatically and immediately revoked, and (b) either at the discretion of Enable (A) Reseller shall be allowed to take the relevant data for its Merchants and their customers subject to the provisions below or (B) Reseller shall take over the duties of providing the Enable Platform to Merchants.
(ii) Upon any termination of this Agreement, Enable agrees, upon written request from Reseller, to provide the Reseller with any available data relating to Reseller’s Merchant and their customers subject to the following conditions: (A) Reseller must not be in breach of the terms of this Agreement (B) Reseller has paid any applicable early termination fee and all other amounts due under this Agreement and (C) the transfer of such information is allowed under the applicable state laws, federal laws and any other applicable laws, rules or regulations.
(iii) If Reseller violates any of the terms and conditions of this Agreement, then Enable may charge a termination fee in an amount equal to the greater of (i) the monthly fees and other fees due under this Agreement multiplied by the number of months remaining until the end of the current term of the Agreement and (ii) the average monthly fees charged to the Reseller for the previous 2 months (or such shorter time if the Reseller has processed for less than 2 months including as evidenced by prior processing volume) for its Reseller account multiplied by the number of months remaining until the end of the current term of the Agreement. The parties expressly agree that the damages, which Enable and Reseller might reasonably anticipate to be sustained by Enable and Reseller, are difficult to ascertain and measure because of their indefiniteness or uncertainty and that the amount set forth above is a reasonable estimate of the damages that would probably be caused and shall be due regardless of proof of actual damages. Reseller hereby authorizes Enable to debit any charges due by Reseller under this Agreement from any checking, savings, credit card or any other type of account provided by Reseller to Enable.
4. 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, (v) negligence of Reseller, Merchants or its subcontractors, agents or employees, or (vii) any alleged or actual violations by Reseller, Merchants or its subcontractors, employees or agents of any card association rules, governmental laws, regulations or card association rules.
5. Disclaimer of All Warranties
THE ENABLE 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.
6. 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, 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 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 ONE THOUSAND DOLLARS ($1,000.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.
7. Non-Solicitation
During the period that this Agreement is in effect and for the twelve (12) month period immediately following termination 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 that of other person, firm, or corporation.
8. 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 Enable Platform and the know-how, technology, techniques, 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.
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, Enable grants no right or license to Reseller by implication, estoppel or otherwise and Enable shall own all right and title to (i) the Enable Platform, (ii) any modifications, improvement, suggested changes or other changes to the Enable Platform made by Reseller or (iii) any Intellectual Property Rights of Enable. 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. 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. 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.
10.
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. 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, Enable may assign this Agreement and its rights hereunder to a purchaser of all or substantially all of its assets or equity. This Agreement 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. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, shall be effective unless assented to in writing by both parties.
In any action arising from the alleged breach of this Agreement, or to enforce this Agreement, the final prevailing party will recover its reasonable attorneys’ fees, costs and expenses.
11. Dispute Resolution
All disputes arising under or in connection with the 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 will submit the dispute to binding arbitration in Texas pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and the procedures set forth in paragraph 10. Any controversy or claim arising out of or relating to this contract, 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 arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, except as specified below. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Texas, and the number of arbitrator(s) shall be one. In applying the AAA’s Commercial Arbitration Rules, the parties agree to the following exceptions: (1) the procedures for Large, Complex Commercial Disputes shall not apply; and (2) 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.
12. Jurisdiction; Venue; Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas (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 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.
13.
The failure of either party to this Agreement to object to or to take affirmative action with respect to any conduct of the other 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. 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 effect the validity of the remaining parts, terms or provisions. The various headings in this Agreement are inserted for convenience only and shall not affect this Agreement or any portion thereof. This Agreement may be executed in two or more counter-parts or by fax, each of which shall be deemed an original, all of which together shall constitute one and the same instrument. All representations, covenants and warranties shall survive the execution of this Agreement, and sections 1, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 shall survive termination of this Agreement.