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REVPAY LOAN PROGRAM
TERMS AND CONDITIONS

These terms and conditions (this “Agreement”) are made by and between the merchant (“Merchant”) listed in the attached merchant application form (“Merchant Application”), and Rev19, LLC, a Texas limited liability company (“Company”).

WHEREAS, Company is engaged through its relationship with financial institution(s) and other third parties in providing a loan program for retail merchants to allow such merchants to offer installment loans to their consumer customers for the purpose of financing the purchase of goods and services from such merchants which includes all services necessary to (i) originate consumer loans offered by a financial institution; and (ii) provide funds to the merchant for the consumer’s purchase of goods and services using the proceeds of the installment loans between the financial institution and the consumer (the “Loan Program”); and

WHEREAS, from time to time pursuant to this Agreement, Merchant desires to offer the Loan Program for the making of installment loans to its customers to finance the purchase of goods and services from Merchant.

NOW, THEREFORE, in consideration of the foregoing and the covenants, representations and warranties hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Merchant and Company hereby agree as follows:

ARTICLE I
DEFINITIONS

Capitalized terms used and not otherwise defined herein shall have the following meanings in this Agreement:

“Applicable Law” means, at any time, all federal, state, commonwealth and local laws, statutes,  rules, regulations, court orders and decrees, administrative orders, decrees, bulletins, and guidance, and other legal requirements of any type applicable to any Loan (including, without limitation, the marketing, and origination of a Loan to finance the purchase of goods and services and the provision of payment processing services for Merchant) and all requirements of any regulatory authority having jurisdiction over the Merchant, the Company and the Financial Institution, as any such laws, statutes, regulations, orders or requirements may be amended and in effect from time to time during the term of this Agreement.

“Customer Application” means credit application of the Financial Institution under this Loan Program to determine whether the Merchant’s customer qualifies for a loan from the Financial Institution to finance the purchase of goods and services from the Merchant.

“Borrower” means, with respect to any Loan, each retail customer and other obligor (including any co-signor or guarantor, if any) who is liable for amounts owing with respect to such Loan.

“Borrower NPPI” means any Non-Public Personal Information of any actual or potential Borrower.

“Business Day” means any day other than a Saturday, Sunday or a day on which banking institutions in the State of Texas are authorized or obligated by Applicable Law or executive order to be closed.

“Confidential Information” means: (a) information disclosed by a party (“Discloser”) to the other party (“Recipient”) regarding its customers,  financial condition and results of operations, financial and risk models, projections, loss and return estimates, compliance and risk management systems, loan pricing, customer fees and charges, vendor pricing, organizational structure, as well as non-public information regarding pending or threatened litigation or regulatory matters involving Discloser; (b) information regarding Discloser’s inventions, discoveries, developments, improvements, processes, systems, methods, devices, patents, patent applications, trademarks, intellectual property, know-how, trade secrets, instruments, materials, products, programs, techniques, designs,  research/development activities  and  plans, data, specifications, computer programs/code (object and/or source), costs of production, promotional methods, marketing plans/strategies, clinical plans, business opportunities, vendors, and customer lists; (c) any Borrower NPPI; (d) information that: (i) is marked “Confidential”, “Proprietary” or in some similar way; (ii) Discloser identifies as Confidential Information when disclosed or within a reasonable time afterwards; or (iii) Recipient knows, or should know, to be confidential or proprietary to Discloser; and (e) any third party information with respect to which Discloser is subject to restrictions on disclosure or use based on the confidential nature of such information; provided, however, that “Confidential Information” does not include any information that: (A) was publicly known or made generally available to the public prior to its disclosure hereunder; (B) becomes publicly known or is made generally available to the public following its disclosure hereunder  through no wrongful act or omission of Recipient or anyone to whom Recipient has disclosed such information; (C) Recipient rightfully possessed without any duty of confidentiality prior to its disclosure hereunder (as clearly shown by Recipient’s records); (D) was independently developed by Recipient without use of or reference to any information received by or on behalf of Recipient hereunder (as clearly shown by Recipient’s records); and/or (E) Recipient rightfully obtained from a third party, where such third party was not subject to any restrictions on disclosure with respect to such information.

“Financial Institution” means the state or federally chartered financial institution that will make loans to consumers to finance the purchase of goods and services from Merchant pursuant to the Loan Program.

“Loan” means a promissory note or other similar loan agreement of a Financial Institution with a Borrower under this Loan Program for the funding of a retail sale of goods or services from Merchant, using the Services and platform of Company (including its vendors). At the option of the Financial Institution, it may offer promotional term Loans to Merchant and Borrowers from time to time.  A loan is deemed originated when a Borrower accepts the promissory note and the Merchant provides the goods or services to the Borrower.

“Loan Documents” means all legal and regulatory agreements, disclosures and communications relating to an Application and a Loan including but not limited to the Borrower’s Application for a Loan for financing the purchase and sale of goods or services, any Privacy Notice and any underwriting materials, the Borrower’s credit score and credit report, Authorization for Automatic Payments and the Loan executed by the Borrower.

“Non-Public Personal Information” or “NPPI” has the meaning ascribed to such term under the Federal Trade Commission and the Gramm-Leach-Bliley Act.

“Services” means those services provided by Company under the Loan Program in connection with the origination of Loans between the Financial Institution and Merchant’s customers and the funding of purchases by such customers by facilitating payment between the Financial Institution and Merchant and including all chargebacks and refunds due to Financial Institution when Borrower cancels or disputes a sale.

ARTICLE II
TERMS OF LOAN PROGRAM

2.1       Services. Company shall provide a software application (“Software”) to assist Merchant to connect to or use the Services, which results in customers of the Merchant being offered and potentially obtaining a Loan from a Financial Institution for the goods or services they wish to purchase from Merchant (“Merchant Products”).  In offering Loans to customers through the integration of the Services with the Merchant’s website (“Merchant Site”), Company is acting in its capacity as an agent of Financial Institution.  Borrower may authorize and direct Financial Institution to advance the Loan directly to Company or the Merchant on behalf of the Borrower for the purchase of Merchant Products by the Borrower as set out herein pursuant to the loan agreement between Borrower and Financial Institution (each a “Loan Agreement”).  Neither Merchant nor Company shall be a party to the Loan Agreement.  If Company receives the proceeds of the Loan, it will transfer such proceeds to Merchant in a timely manner, less any fees agreed to between Company and Merchant as set forth in the Merchant Application (“Vendor Fee”), unless Company reasonably determines that transferring such proceeds to the Merchant is not appropriate under applicable circumstances, in which case Company shall return such Loan proceeds to Financial Institution.  Upon receipt of such proceeds from Company, Merchant agrees to apply the Loan (without accounting for the deducted Vendor Fee) against payment for the Merchant Products provided or to be provided by Merchant to a customer.  Merchant agrees to credit the Loan received by Merchant as if the Vendor Fee had not been deducted from the Loan.

2.2       Software.  During the term of this Agreement, Merchant may use the Software solely for the purposes of enabling Merchant to use the Services.  Except as expressly authorized by this Agreement, Merchant may not: (a) modify, disclose, alter, translate or create derivative works of the Services or the Software; (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services or the Software; (c) disassemble, decompile or reverse engineer the Software (except to the extent the foregoing is permitted by Applicable Law).  Company reserves all rights not expressly granted herein.

2.3       Integration.  In order to access the Services, Merchant may be required to integrate (the “Integration”) its online ordering and fulfillment system (the “Merchant System”) with that of Company (the “Company System”) pursuant  to the integration specifications set out in  Schedule “A” attached hereto (the “Integration Specifications”).

2.4       Contract Formation Within Integration. At the discretion of Company, the Integration and / or the Software to use the Services may include an obligation on the part of Merchant to post certain terms of use, consents or other notices to be accessed, reviewed and accepted by the customer (each a “Customer Engagement”).  Merchant acknowledges that for each Customer Engagement, Company shall rely on Merchant to present the Company-prescribed language and retrieve the Company-prescribed consents, as per the Integration and / or the Software, all of which shall be recorded and documented on Merchant systems for the term of this Agreement and for the greater of five (5) years thereafter or any time period required by Applicable Law.

2.5       Implementation.  When and to the extent available, Merchant will use commercially reasonable efforts to integrate the Services with one or more Merchant Sites as soon as is reasonably practical, and to maintain such integration during the term of this Agreement. Merchant will adhere to and follow Company’s integration guidelines (“Integration Guidelines”), including providing a contact for Integration and Integration support questions.

2.6       Marketing.  The parties will mutually discuss and agree to certain marketing and promotional activities and related obligations in connection with the promotion of the Services.  Company may, at its discretion, use Merchant as a case study and Merchant will provide a testimonial about the Services, to be publicized at the sole discretion of Company.  Company may use such case study and testimonial for Company’s marketing efforts, which may include displaying descriptions of the case study and such testimonial on Company’s website and in other marketing activities, provided that such materials are pre-approved in writing by Merchant, which approval shall not be unreasonably withheld or delayed.

2.7       Branding.  Company grants Merchant a non-exclusive, limited license to use the trade names, trademarks, service marks, symbols and logos (collectively, “Marks”) of Company solely to fulfill its obligations pursuant to this Agreement, and solely in accordance with Company’s trademark usage guidelines which Company may publish and update from time to time. All use of Company’s trademarks, service marks and logos will inure solely to the benefit of Company.  Each page of any Merchant Site that references or includes the Services will feature the “Powered by Company” logo in a form and manner approved by Company.  All other references to the Services by Merchant will feature Company’s Marks, adhere to Company’s branding guidelines and must be pre-approved in writing by Company. Merchant will promptly notify Company of any of the following of which it becomes aware: (a) any use by any third party of Company’s Marks; or (b) any use by any third party of similar Marks that may constitute an infringement or “passing off” of Company’s Marks. Company reserves the right, at its discretion, to engage in any proceedings against such third-party infringers. Merchant will cooperate fully with Company in any action taken by Company against such third parties; provided, however, that all expenses of such action will be borne by Company and all damages that may be awarded or agreed upon in settlement of such action will accrue to Company.

2.8       Publicity and Press Release.  Merchant consents to Company’s use of Merchant’s name and logo on sites owned or controlled by Company and on Company’s publicly available printed materials, identifying Merchant as a user of the Services.  Company and Merchant agree that either party may issue a press release describing their relationship in connection with the Services, provided that the content and timing of any press release is subject to the prior approval of both parties (which will not be unreasonably withheld).

2.9       Background Check.  Merchant authorizes Company or its agents to make whatever inquiries Company deems appropriate to investigate and verify any of the credit, financial and other information given by Merchant in the Merchant Application, including credit references and to obtain credit reports on any of Merchant’s owners and/or officers (“Background Information”).  Background Information on Merchant and its owners and officers may be requested at any time during the term of this Agreement.  Merchant acknowledges and agrees that Company may disclose Background Information to Company’s agents or Financial Institution in order to, among other things, (a) detect, prevent or otherwise address fraud or security issues or for risk management purposes; (b) comply with any Applicable law, legal process or governmental or law enforcement request, or (c) enforce this Agreement, including investigation of potential violations hereof.

ARTICLE III
MERCHANT OBLIGATIONS

3.1       Exclusive Use of Loan Program.  During the term of this Agreement, Merchant shall not allow any third party to offer loans or other forms of purchase financing to customers through the Merchant Site.

3.2       No Authority to Bind Financial Institution.  Merchant shall not make any agreement or commitment to any applicant on behalf of Financial Institution, nor shall Merchant misrepresent any of Financial Institution’s loan terms or requirements to an applicant or Borrower. Merchant has no authority to bind or obligate Financial Institution.  Merchant will inform an applicant in an accurate and timely manner of requests by Company or Financial Institution for information and other requirements of such applicant.  Merchant acknowledges that it does not have a contract with Financial Institution and that this Agreement does not create any obligations for Financial Institution and Financial Institution shall not have any liability in any form under this Agreement.  Merchant and Company grant to Financial Institution, as a third party beneficiary of this Agreement between Merchant and Company, the right (but not the obligation) to exercise any right of Company or Merchant against the other for the benefit of Financial Institution, including without limitation, the ability to seek indemnification from Merchant for the Financial Institution’s losses and the ability to terminate this Agreement.

3.3       Services to be Performed by Merchant.  Merchant shall solicit its customers to make Applications for Loans offered by Financial Institution. Solicitation shall include but not limited to educating the customer about the ability to finance the purchase of goods and services and the loan terms including promotional terms, if available, and the Application process.

3.4       Application Processing.  Upon the request of a customer, Merchant will provide access to Company’s application platform and assist customer in completing the Application and all other necessary forms to the extent that assistance may be required.

3.5       Training.  Merchant will ensure that each employee receives appropriate training in the Loan Program and is familiar with the guidelines published by Company relating to the Loan Program.

3.6       Restrictions.  Merchant shall not: (a) copy, frame or mirror any part or content of the Services; (b) access the Services to build a competitive product or service or copy any features or functions of the Services; (c) interfere with or disrupt the integrity or performance of the Services or data therein; (d) attempt to gain unauthorized access to the Services or their related systems or networks; (e) disclose to any third party any performance information or analysis relating to the Services; (f) use the Services in connection with any sites or properties other than the Merchant Sites; or (g) cause or encourage any other party to do any of the foregoing.

3.7       Credit Decisions Using Customer Data.  Merchant represents that customer data provided by Merchant shall be complete and accurate as and when they are provided to Company and / or Financial Institution.  Merchant acknowledges that Financial Institution shall use customer data to make credit decisions concerning potential Loans to customers.  Merchant shall be responsible for any and all losses under the Loan Agreements for (i) Customer Engagement that were not executed in accordance with the Integration or the Software; or (ii) for which the customer data provided by Merchant was incomplete or inaccurate.

3.8       Obligations Regarding Merchant Products.  Merchant is solely responsible for: (a) the price, description, marketing, sale, order fulfillment, shipping, customer support for and provision of Merchant Products to customers and any product liability issues associated therewith; (b) reimbursing all payments to customers that are disputed, reversed, charged back, refunded or voided, and paying all associated or resulting fees or penalties; (c) properly disclosing to customers and complying with any consumer-sales-related terms and conditions and full or partial refunds, exchange, or related policies that Merchant enforces with customers; (d) collecting and remitting any applicable taxes, fines or tariffs in connection with the sale of Merchant Products; (e) making and maintaining in effect all necessary registrations with any and all governmental agencies, commercial registries and other offices that  are required for Merchant to conduct its business; and (f) otherwise complying with Applicable Law, regulations, rules, guidance, decrees, decisions and judgments.  Company reserves the right (but not the obligation) to cancel the Services if Company reasonably suspects that a customer is using the Services to engage in fraud, money laundering or other illegal or illicit behavior.

3.9       Prohibited Merchant Products and Services.  Merchant agrees that it will not use the Services to obtain loans for any products or services listed on Schedule “B”.  Such list of prohibited products and services may be updated and amended by Company upon written notice to Merchant.

3.10      Prohibited Conduct.  Merchant agrees that it will not: (a) discriminate against any protected class or group when offering the Loan Program to customers; (b) discourage any customer from attempting to qualify for a Loan for any reason prohibited by Applicable Law; (c) (i) alter, (ii) falsify, or (iii) intentionally omit any material information or document(s) relating to a customer when providing information or document(s) in connection with the Loan Program; (d) actively advise or cause a customer to provide false information in the Customer Application; (e) charge the customer a fee for submitting a Customer Application or applying for a Loan; or (f) represent to a customer whether the customer has or has not been approved for a Loan unless previously notified in writing or via electronic methods of the same by Company, provided however that this does not limit Merchant from informing the customer that he or she may be pre-qualified or has not pre-qualified for a Loan using language mutually approved by Merchant and Company and based upon information provided electronically by Company to Merchant.

3.11      Customer Support.  Merchant is solely responsible for customer support for any matter that does not pertain to the Services, and for training Merchant’s support personnel in a manner sufficient to perform such support.  Company will use commercially reasonable efforts to provide Merchant with customer support and troubleshooting information for Services in order to provide first tier customer support for customers. Company may contact customers directly for any issue that pertains to the Services or any Loan, including, but not limited to, soliciting customer feedback about the Services.

3.12      Customer Complaints.  Merchant hereby affirms that it will respond to consumer complaints in a manner that is timely and compliant with all applicable regulatory requirements. Merchant will promptly inform Company via email of all consumer complaints received that pertain to the Loan Program, including the financial products, loan application, lending or decisioning process, servicing operations, information technology, or any other subject pertaining to the Loan Program.

3.13      Informational Requests.  Merchant shall, upon notice, promptly provide any information requested by any governmental entity with jurisdiction over Company or Financial Institution.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE MERCHANT

Merchant represents and warrants as of the date hereof, and agrees that it shall be deemed to make and renew each representation and warranty on and as of each date it offers financing under the Loan Program to its customers, as follows:

4.1       Due Organization and Good Standing.  Merchant is a business entity (as indicated on the Merchant Application), duly organized, validly existing, and in good standing under the laws of its state of its organization. To the extent required by Applicable Law, Company is properly licensed and qualified to transact business in all appropriate jurisdictions.

4.2       Authority and Capacity.  The execution, delivery, and performance by the Merchant of this Agreement are within its organizational powers, have been duly authorized by all necessary action, and do not contravene the Merchant’s organizational documents or any law or contractual restriction binding on or affecting the Merchant. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the Merchant’s due execution, delivery, and performance of this Agreement. This Agreement is the Merchant’s legal, valid, and binding obligation enforceable against the Merchant in accordance with its terms.

4.3       Sale of Goods and Services. All representations made by Merchant to Borrowers related to the goods and services sold and financed under this Agreement with Loans were complete and correct. The quality of the goods and services sold meet or exceed applicable standards sufficient to ensure that Borrowers will have no claims against Merchant for unfair or deceptive trade practices and Merchant has done and Merchant will do, no act or thing which may adversely affect the enforceability of the Loans.

4.4       Origination of Loans and Loan Documents.  Merchant did not engage in discriminatory practices in the manner in which it offered Loans or assisted consumers in completing Customer Applications which could result in claims of violation of Applicable Laws. The Loans were offered pursuant to Financial Institution’s established standards as provided to Merchant by Company from time to time.  The Loan Documents accurately depict the information provided by the Borrower on the Customer Application.  Any statements by Merchant that the identity, income, or delivery of the product to the Borrower were verified are accurate in all material respects.

4.5       Compliance with Loans and Regulations.  Merchant will comply with all material obligations under all contracts to which it is a party, and under Applicable Law, to the extent that such obligations might affect any of the Loans or any of Merchant’s agreements or obligations hereunder or otherwise to Borrowers.  Merchant has done and Merchant will do, no act or thing which may adversely affect the Loans.

4.6       Litigation, Compliance with Laws.  There is no litigation, proceeding or governmental investigation pending, or any other injunction or decree outstanding which might materially affect any of the Loans or any of Merchant’s agreements or obligations hereunder.  Additionally, there is no litigation, proceeding or governmental investigation existing or pending or, to the knowledge of Merchant threatened, or any order, injunction or decree outstanding against or relating to Merchant, that has not been disclosed by Merchant to Company or its counsel in writing prior to the execution of this Agreement, which could have a material adverse effect upon the Loans or any of Merchant’s agreements or obligations hereunder, nor does Merchant know of any basis for any such litigation, proceeding, or governmental investigation.  Merchant has not violated any Applicable Law which may materially affect any of the Loan Documents or any of Merchant’s agreements or obligations hereunder.

4.7       Statements Made.  No representation, warranty or written statement made by Merchant in this Agreement or in any exhibit, schedule, written statement or certificate furnished to Company or Financial Institution in connection with the transactions contemplated hereby by Merchant contains or will contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein or therein not misleading.

4.8       Loan-Level Representations.  With respect to each Loan involving Merchant:

(a)        No valid claim or defense exists with respect to Merchant that may be asserted against Company or Financial Institution pursuant to Applicable Law due to any action or inaction by Merchant;

(b)        There are no agreements, commitments or understandings between  Merchant and any Borrower purporting to modify, amend or waive any terms or conditions of the Loan or the Loan Documents; and

(c)        The Loan is not unenforceable in whole or in part, or subject to any right of rescission, due to any action or inaction by Merchant.

ARTICLE V
REPRESENTATIONS AND WARRANTIES OF COMPANY

Company represents and warrants as of the date hereof, and agrees that it shall be deemed  to make and renew each representation and warranty on and as of each date it offers financing under the Loan Program to Merchant, as follows:

5.1       Due Organization and Good Standing.  Company is a limited liability company, validly existing and in good standing under the laws of the state of its organization.  To the extent required by Applicable Law, Company is properly licensed and qualified to transact business in all appropriate jurisdictions.

5.2       Authority and Capacity.  Company has all requisite limited liability company power, authority and capacity to enter into this Agreement and to perform the obligations required of it hereunder.  The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have each been duly and validly authorized by all necessary limited liability company action. This Agreement constitutes the valid and legally binding agreement of Company enforceable in accordance with its terms, subject to bankruptcy laws and other similar laws of general application affecting rights of creditors and subject to the application of the rules of equity, including those respecting the availability of specific performance.

5.3       Litigation.  There is no action, suit or proceeding or investigation pending or to Company’s knowledge, threatened against Company that, if determined adversely to Company, would adversely affect the Loans or the execution, delivery or enforceability of this Agreement.

ARTICLE VI
MERCHANT COMPENSATION

6.1       Fees and Charges.  Company may charge Merchant a Vendor Fee, and Merchant agrees to pay the Vendor Fee, for each Customer Application approved by Financial Institution; provided the Financial Institution and Borrower enter into a Loan.  The amount of the Vendor Fee is stated in the Merchant Application. Unless otherwise indicated, Vendor Fees are exclusive of applicable taxes.  Merchant shall not pass through any Vendor Fee to a Borrower, charge a Borrower any amount intended to recoup any such fee in whole or in part, or increase the price of goods or services provided to a Borrower on account of any such fee.

6.2       Settlement.  It is anticipated that when the Financial Institution makes a Loan, that the Borrower will authorize the Financial Institution to make payment of the proceeds of the Loan to Company or Merchant. If the Loan is paid to Company, Company will be designated to assist Financial Institution with the distribution of Loan proceeds. Merchant hereby acknowledges and agrees that Company may act as processor and paying agent with respect to transferring funds in and out of Merchant’s designated account listed on Schedule “C” attached hereto (the “Designated Account”) in order to settle amounts due to or from Merchant in connection with the Loans and the Loan Program.

6.3       ACH Authority.  Merchant hereby authorizes Company to electronically credit via ACH Loan proceeds into the Designated Account and to debit the Designated Account for any amounts owed by Merchant under this Agreement.

6.4       Overpayment.  Merchant agrees to immediately return to Company or Financial Institution Loan proceeds Merchant receives for Merchant Products that are greater than the amount owed by Borrower for such Merchant Products (“Overpayment”).

6.5       Events of Default.  The following events shall be considered to be an “Event of Default”:

(a)        the Borrower returns all or part of the goods and services purchased under any Loan and the Merchant fails to process this full or partial refund in a timely manner;

(b)        any representation, warranty, agreement, obligation or covenant contained in this Agreement is breached,  untrue,  incomplete, or inaccurate;

(c)        there  is any dispute, claim, defense, lawsuit, arbitration or action concerning any statements, promises, acts or omissions of Merchant with respect to the purchase transaction or any part thereof related to a Loan, including, but not limited to, the negotiation of the terms and conditions of the Loan and the purchase of the goods and services, or any insurance, warranty, service contract, gap waiver or other products sold or financed in connection with any Loan;

(d)        Merchant fails to comply with or is alleged to have failed to comply with any Applicable Law or to hold any required registrations, licenses, permits, or governmental authorizations required to conduct its business and to sell the goods and services;

(e)        Merchant’s service results in the death of Borrower; or

(f)        any fraud or other willful misconduct committed by Merchant; or

(g)        Merchant fails to perform any of its obligations under this Agreement.

6.6       Billing Disputes and Chargebacks.   Company shall notify Merchant when a Borrower has made a billing inquiry or disputes a Loan.  Merchant agrees to investigate and make a good faith effort to resolve each billing inquiry or dispute referenced to it by Merchant or received directly from Borrower.  Within fifteen (15) Business Days from the date Company sends a billing inquiry or dispute to Merchant, Merchant shall notify Company in writing of the resolution thereof or the action Merchant will take to resolve the billing inquiry or dispute. Merchant shall provide Company with all such information as Company may reasonably request in connection therewith. If, at the end of the fifteen (15) Business Day period, the billing inquiry or dispute is not resolved or Company has not been informed of the resolution of the action Merchant will take to resolve the billing inquiry or dispute, then the disputed portion of the Loan thereof shall be considered a “Chargeback.”

6.7       Right of Setoff.  In the event of an Overpayment, Event of Default of Chargeback, Company may refuse to pay Merchant for the Loan or require Merchant to reimburse to Company the Overpayment (in the event of an Overpayment), the amount of the Loan (in the event of an Event of Default), or the outstanding loan balance of the Loan or disputed portion thereof (in the event of a Chargeback), or set off from any future funding due Merchant an amount equal to all Overpayments, Loan amounts or Chargebacks, as applicable.  Company shall have the option (on behalf of Financial Institution or its assignees) to process any such amounts due by Merchant electronically through debit of the Designated Account. If there are not sufficient funds in the Designated Account to reimburse Company for such amounts, then Merchant agrees to pay such amounts due by Merchant to Company within five (5) Business Days after written demand therefor by Company. If Company processes a Chargeback and the billing inquiry or dispute is subsequently resolved, Company will reimburse Merchant for the disputed amount.  Any liability of Merchant to Company under this Agreement shall not be affected or limited by any waiver, compromise, settlement, extension or variation of the terms of the Loan or release of any Borrower. Company shall not be required to seek any recourse against any security, Borrower or other person before being entitled to enforce the rights, including payment by Merchant under this Section.

ARTICLE VII
REMEDIES

7.1       Merchant’s Indemnification.  Merchant hereby agrees to indemnify, defend and hold Company and Financial Institution and their respective Affiliates, trustees,  officers, directors, agents, employees and representatives (hereinafter collectively referred to as the “Indemnified Company Parties”), harmless from and against, and agrees promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demands, losses, damages, costs, and expenses (including, without limitation, reasonable attorneys’ fees and costs) (collectively, “Damages”) incurred by such Indemnified Company Party by reason of: (i) any material breach by Merchant of any covenant or agreement herein or the material inaccuracy of any representation or warranty of Merchant contained in this Agreement; and/or (ii) any fraud or other willful misconduct committed by Merchant, or any party acting on its behalf, in connection with the transactions contemplated in this Agreement, or (iii) any claims relating to Merchant’s acts or omissions related to any Loan or related to any goods or services sold by Merchant; provided, however, that Merchant shall have no obligation to indemnify the Indemnified Company Parties from and against any Damages to the extent  such Damages result from the proposed indemnitee’s gross negligence or willful misconduct.

7.2       Notice of Claim.  An Indemnified Company Party seeking indemnification hereunder shall give prompt written notice to Merchant of any claim for which it may seek indemnity.  Merchant shall defend such claim, action, suit or proceeding with counsel reasonably satisfactory to the Indemnified Company Party, and the Indemnified Company Party shall reasonably cooperate in the defense.  The Indemnified Company Party may have separate counsel who shall be employed by the Indemnified Company Party at the Indemnified Company Party’s expense; provided, that Merchant shall pay the reasonable attorneys’ fees and expenses of such separate counsel if, in the opinion of counsel to Merchant, the interests of the Indemnified Company and Merchant are adverse such that separate counsel for the Indemnified Company Party is required. Knowledge by the Indemnified Company Party of any breach or non-compliance hereunder shall not constitute a waiver of the Indemnified Company Party’s rights and remedies under this Agreement.

7.3       Limitation of Liability.  In no event will either Company or Merchant be liable to the other party to this Agreement for special, indirect, incidental, punitive or consequential damages, including, without limitation, loss of profit or loss of business or business opportunity, regardless of the form of action whether in contract, tort or otherwise.  Additionally, Company’s liability hereunder shall never exceed the Loan amount.

ARTICLE VIII
TERMINATION

8.1       Company’s Termination for Cause.  Notwithstanding anything to the contrary contained herein, Company shall have the right to immediately terminate this Agreement for cause upon written notice to Merchant.  For purposes of this Section 8.1, “cause” shall include any of the following:

(a)        Merchant’s material breach of any of the representations, warranties and/or covenants contained in this Agreement, including any fraud or alleged fraud or willful misconduct of Merchant;

(b)        filing of a petition for relief by or against Merchant under the U.S. Bankruptcy Code or any other applicable insolvency or reorganization statute; or

(c)        institution of any receivership or conservatorship with respect to Merchant.

8.2       Merchant’s Termination for Cause.  Notwithstanding anything to the contrary contained herein Merchant shall have the right to immediately terminate this Agreement for cause upon written notice to Company.  For purposes of this Section 8.2, “cause” shall include any of the following:

(a)        Company’s material breach of any of the representations, warranties and/or covenants contained in this Agreement;

(b)        filing of a petition for relief by or against Company, under the U.S. Bankruptcy Code or any other applicable insolvency or reorganization statute; or

(c)        institution of any receivership or conservatorship with respect to Company.

8.3       Termination Without Cause. Either party may terminate this Agreement upon thirty (30) days prior written notice of such termination. Such notice shall include the effective date of termination.

8.4       Effect of Termination.  Upon termination of this Agreement, this Agreement shall be null and void and have no further force and effect except for those provisions identified in Section 8.5 of this Agreement, which provisions shall survive any such termination and continue in effect thereafter.

8.5       Survival of  Obligations  and  Covenants.  Notwithstanding anything to the contrary expressed in this Agreement, the terms of this Agreement that would, by their express nature, survive the termination of this Agreement will survive and be enforceable under this Agreement including without limitation, under Articles III, IV, V, VI, VII, IX, X and XI and this Section 8.5.

ARTICLE IX
CONFIDENTIALITY AND PRIVACY

9.1       Disclosure of Confidential Information.  From time to time, in connection with the operation of this Agreement and/or the transactions contemplated by this Agreement, Discloser may disclose Confidential Information to Recipient, whether in writing, orally, or by allowing inspection of tangible objects (i.e., documents, tapes disks, prototypes, samples, plants or equipment).  “Confidential Information” of Company specifically includes the terms and conditions of this Agreement and information or data relating to the Loan Program, the Services, Software, and other Company materials.

9.2       Handling of Confidential Information.  Recipient shall:

(a) hold Confidential Information in the strictest confidence and use it solely (i) to fulfill its obligations hereunder or (ii) with respect to Loan Confidential Information held by or on behalf of Company, as is reasonably necessary to establish, maintain and enforce Company’s rights with respect to such Loans, subject to Section 9.3;

(b)        disclose Confidential Information only to those personnel and third-party service providers of Recipient who need to receive such Confidential Information in connection with one or more of the permitted uses described in paragraph (a) of this Section 9.2; provided that Recipient must: (i) inform any such personnel or service provider of the confidential nature of such Confidential Information; (ii) take commercially reasonable steps to ensure that any such personnel and service providers do not violate the provisions of this Article IX; and (iii) immediately notify Discloser if Recipient has reason to believe any such personnel or service provider has violated or intends to violate the provisions of this Article IX; and provided further that Recipient will be liable for any acts or omissions of any such service provider or any Recipient personnel in breach of this Article IX;

(c)        not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects embodying Confidential Information;

(d)        not make any copies of Confidential Information unless previously authorized in writing by Discloser, except that Company may make copies of Loan Confidential Information, subject to Section 9.3;

(e)        if authorized to make copies of Confidential Information, reproduce on such copies any proprietary rights and/or confidentiality notices appearing on the original Confidential Information in the same manner as on the original; and

(f)        use its commercially reasonable efforts to protect and maintain the confidentiality of the Confidential Information, which protections shall be at least equivalent in scope and effect to the measures taken by Recipient to protect its own confidential or proprietary information of a like or similar nature, but in no event less than a commercially reasonable level of such protection.

9.3       Special Protections for Borrower Information.  Each party agrees to protect Non-Public Personal Information (“NPPI”) about the Borrowers in compliance with Applicable Law (collectively, the “Safeguarding Rules”). Each party represents and warrants to the other party that it has and agrees to maintain physical, electronic, and procedural controls and safeguards in compliance with the Safeguarding Rules to protect NPPI from unwarranted disclosure. Each party will implement and maintain appropriate measures designed to meet the following objectives: (a) to ensure the security and confidentiality of Borrower NPPI; (b) to protect against any anticipated threats or hazards to the security or integrity of such information; and (c) to protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any Borrower. Each of the Merchant and the Company agrees that it shall comply with the Safeguarding Rules and will promptly notify Company or Merchant, as applicable, of any breach of the Safeguarding Rules or the provisions of this Article IX.

9.4       Compelled Disclosure.  Recipient may disclose Confidential Information belonging to Discloser to the extent required to be disclosed by Applicable Law, provided that Recipient:

(a)        provides Discloser with written notice of such requirement to disclose as soon as practicable once learning of such requirement, if such notice is not prohibited by Applicable Law;

(b)        consults with Discloser on the advisability of seeking confidential treatment for some or all of the Confidential Information at issue; and

(c)        assists Discloser as reasonably requested by Discloser and at Recipient’s expense, in obtaining a protective order or otherwise securing confidential treatment for such Confidential Information.

Notwithstanding the foregoing, Company and Financial Institution may share any Confidential Information with any governmental entity having supervisory or examination authority over Company or Financial Institution at any time for any reason without notice to or consultation with Merchant and without a protective order of any kind.  To the extent applicable and practicable under the rules of the relevant governmental entity, Company or Financial Institution (as the case may be) will request confidential treatment for such Confidential Information.

9.5       Return or Destruction of Materials.  Recipient shall return or destroy, as Discloser indicates, all Confidential Information belonging to Discloser, including without limitation all copies, compilations, summaries, analyses or other materials containing or reflecting Recipient’s use of Confidential Information, within ten (10) days after the earlier of:

(a)        termination of this Agreement; or

(b)        Discloser’s written request to Recipient for such return or destruction, as applicable. Recipient shall promptly send Discloser written confirmation of such destruction or return. This provision does not apply to electronic copies made as part of the Recipient’s standard computer back up practice, subject to such electronic copies continuing to be subject to the other provisions of this Agreement.

9.6       Ownership of Confidential Information.  Except for Loan Confidential Information (which shall be the property of Financial Institution), the Confidential Information (and related copies and materials) shall be the sole and exclusive property of the Discloser thereof. Recipient has no rights under any of Discloser’s patents, copyrights, trademarks, trade secrets or with respect to any of Discloser’s other intellectual property, except if and as expressly set forth herein. Recipient may not use Confidential Information to apply for or secure any patents or any other intellectual property rights.

ARTICLE X
AUDIT

Merchant shall allow Company and Financial Institution and their authorized representatives (including internal and external auditors, and governmental entities with regulatory authority over either party (collectively, the “Auditors”) upon the giving of reasonable prior notice access, during normal business hours, to the books and records and other information relating to the Loan Program, and permit such representatives to make copies as may be necessary for the purposes of auditing the Loan Program and compliance with Applicable Law. Such party’s activities shall be conducted in a manner which does not unreasonably interfere with the normal operations, customers and employee relations of Merchant. Company and Financial Institution are entitled to inspect its Confidential Information and Borrower NPPI compliance with the security requirements in Article IX. Such audits shall not materially interfere with Merchant’s business and shall be conducted during normal business hours, upon reasonable advanced written notice to Merchant.

ARTICLE XI
MISCELLANEOUS

11.1      Costs and Expenses.  Except as specifically provided to the contrary in this Agreement, Company and Merchant shall each bear its own accounting, legal and related costs and expenses in connection with the negotiation and preparation of this Agreement and the performance by each of Company and Merchant of its respective obligations arising under this Agreement.

11.2      Independent Contractors.  This Agreement does not in any way create the relationship of joint venture, partnership, or principal and agent between Company and Merchant. Each party agrees that there are no third parties who are intended to be beneficiaries of the rights and obligations provided in this Agreement.

11.3      Notices.  All notices, requests, demands and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of delivery if personally delivered or by email and confirmed by a mailed writing, on the Business Day following having been sent by overnight courier, or three (3) days after having been mailed by U.S. mail, postage prepaid:

(a)        If to the Company, to:    Rev19, LLC

2535 E Southlake Blvd., Suite 140

Southlake, TX 76092

Attention:  Legal Department

email: corey@rev19.net

 

(b)        If to Merchant, to Merchant specified within the documents of this agreement or to such other address as Company or Merchant shall have specified in writing to the other.

11.4      Governing Law.  The  construction of this Agreement and the rights, remedies, and obligation arising by under, through or on account of it shall be governed by the internal laws of the State of Texas without regard to its conflicts of laws principles, except to the extent the same are preempted by the laws of the United States. The parties hereby consent to the sole and exclusive jurisdiction to the state and federal courts located in Dallas County, Texas for any dispute arising out of this Agreement.  Each party hereto expressly and irrevocably waives any right to trial by jury in any claims or causes of action arising out of or related to this Agreement.

11.5      Modification; Entire Agreement; No Waiver of Rights.  Except as expressly set forth herein, this Agreement may not be modified except by a document signed by both Merchant and Company.  This Agreement contains the entire agreement of the parties and supersedes all previous agreements (including all amendments thereto) between the parties hereto. Any representations, promises or agreements not contained in this Agreement shall have no force or effect.  The failure of either party to exercise any right given to it under this Agreement or to insist on strict compliance of any obligation under this Agreement shall not constitute a waiver of any right, including the right to insist on strict compliance in the future.

11.6      Section Headings and Construction.  The section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.

11.7      Mutual Construction.  This Agreement shall be deemed to have been drafted by both Merchant and Company. Therefore, any ambiguities shall not be construed against either party.

11.8      Captions.  Paragraph captions in this Agreement are for ease of reference only and shall be given no substantive or restrictive meaning or significance whatsoever.

11.9      Counterparts.  This Agreement may be executed in two counterparts and exchanged via electronic means (such as PDF), each of which shall be an original regardless of whether all parties sign the same document. Regardless of the number of counterparts, they shall constitute only one agreement.  It shall not be necessary in making proof of this Agreement to produce or account for more than one counterpart.

11.10    Binding Effect.  Merchant acknowledges and agrees that each of the Indemnified Company Parties and their successors and assigns are intended third-party beneficiaries of this Agreement and that each Indemnified Company Party will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Merchant as a third-party beneficiary thereof.  Except as expressly stated herein, nothing in this Agreement, express or implied, is intended to confer on any person other than the parties hereto any rights, obligations, remedies or liabilities.  Merchant shall not assign this Agreement to any third party without the prior written consent of Company. Company may, at its discretion, assign its rights and obligations hereunder to a third party on notice to Merchant.  This Agreement will be binding and inure to the benefit of the parties and their successors and permitted assignees.

11.11    Severability.  In case any provision or obligation under this Agreement shall be deemed invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation, shall not in any way be affected or impaired thereby in any other jurisdiction.

11.12    Force Majeure.  Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God (fire, storm, floods, earthquakes,  etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service by any service providers being used by Company to link its servers to the Internet, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party. In the event of any such delay the date of performance will be deferred for a period equal to the time lost by reason of the delay.

11.13    DISCLAIMER OF WARRANTIES. COMPANY PROVIDES THE SERVICES ON AN “AS  IS” AND “AS AVAILABLE” BASIS AND COMPANY DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT COMPANY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. MERCHANT ACKNOWLEDGES AND AGREES THAT IT HAS RELIED ON NO SUCH WARRANTIES.  THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.  COMPANY MAY PROVIDE REGULAR UPDATES TO SOFTWARE AND SERVICES TO ADDRESS ISSUES, IMPROVEMENTS AND REQUESTS AS COMPANY DEEMS NECESSARY.  Neither party will make any representations or warranties on the other party’s behalf.