SURGEPAYS MERCHANT RETAIL LOCATION AGREEMENT
This Merchant Retail Location Agreement (“Agreement”), between Merchant Retail Location (hereinafter “Merchant”) having its principal place of business at and Surge Blockchain, LLC DBA SurgePays (“Company”), is entered for the purpose of establishing an Agreement to govern the parties’ relationship (“Parties” when used herein shall collectively refer to Merchant and Company). The Effective Date is 2019-10-16 (“Effective Date"). The Agreement (and all associated addenda) (“Agreement”) supersedes any and all prior oral or written agreements (including purchase orders) entered into prior to the Effective Date between the parties pertaining to the matters addressed herein.
With the intent of being legally bound, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Appointment. On a nonexclusive basis, Company hereby designates and appoints the Merchant as a Merchant Retail Location of Company under this Agreement, and Merchant hereby accepts such appointment to be a Merchant Retail Location of Company during the term and in accordance with the terms of this and all related agreements. Company authorizes Merchant, in such capacity, to take such action on its behalf under the provisions of this Agreement and to exercise such powers and perform such duties as are expressly delegated by the terms of this Agreement.
2. Independent Contractor. The relationship of the parties under this agreement is that of an independent contractor, the Merchant, and the company hiring the contractor, Company. In all matters relating to this agreement each party hereto shall be solely responsible for the acts of its employees and agents, and employees or agents of one party shall not be considered employees or agents of the other party. Except as otherwise provided herein, no party shall have any right, power, or authority to create any obligation, express or implied, on behalf of any other party. Nothing in this agreement is intended to create or constitute a joint venture, partnership, agency, trust, employment, or other association of any kind between the parties or persons referred to herein.
3. Term. The term of this Agreement shall be for thirty-six (36) months beginning on the Effective Date. It shall automatically renew for a successive, one year term, unless either party gives written notice to terminate the Agreement at least one month prior to the end of the current term. Such Notification shall be submitted in writing via certified or overnight mail service or via electronic mail whereby recipient provides sender acknowledgement of receipt.
4. Termination. Notwithstanding anything in this Agreement, Company may terminate this Agreement with or without cause for any or no reason at any time during the term of this Agreement. Such termination may take place with or without notice to Merchant (including any of the Merchant’s Agents or employees). Merchant hereby waives notice of any termination of this Agreement or associated addenda.
5. Exclusivity. Merchant agrees that during the term of this Agreement, Company shall be its exclusive supplier of Products and Services which includes Prepaid Airtime, Home Phone RTR, Long Distance Calling Memberships, Dial up Internet, Bill Payment Services, Debit Card Loads, and other products and Services sold through the Company Point of Sale Terminal (“POS Terminal”) and also independently of the Company Point of Sale Terminal and further agrees not to purchase such Products and Services from any provider other than Company. Merchant further agrees that it will not procure any service or offer for sale any Product or Service that is competitive with any Product or Service offered to Merchant by Company.
6. Enrollment and Set Up. Once Merchant has completed and submitted all essential paperwork and documentation to the satisfaction of Company, Company shall provide Merchant with a Point of Sale Terminal. The Point of Sale Terminal will enable merchant to purchase and sell Products and Services (“Products and Services”) offered for sale by Company, which may include but not be limited to Prepaid Airtime, Home Phone RTR, Long Distance Calling Memberships, Dial-Up Internet, Bill Payment Services, Debit Card Loads and other Products and Services sold through the Company Point of Sale Terminal and possibly independently of the Company Point of Sale Terminal.
a. Company hereby retains in its sole but reasonable discretion the authority to approve, disapprove or terminate any proposed or then active Merchant Retail Location for any reason whatsoever, and/or require a deposit reserve for any Merchant Retail Location to conduct or continue conducting business with Company.
7. Equipment Lease: Company shall provide Merchant a Point of Sale Terminal free of charge provided that the following conditions are met every month at the discretion and approval of Company:
a. The monthly revenue less Merchant discount transacted through the POS Terminal must equal seven hundred and fifty dollars ($750) or more per month.
b. The period allotted to reach this minimum will be sixty (60) days from the effective date of this Agreement.
c. In the circumstance whereby the Merchant has contracted with Company for services to multiple locations, each location will be measured independently with respect to the monthly revenue requirement.
d. If the circumstance arises that Merchant does not reach the monthly revenue allotment in a given month, Merchant authorizes Company to automatically draft an equipment lease fee under the established ACH drafting process from the Merchant’s bank account on file with Company.
e. Company will not charge an Equipment lease fee for Merchant that uses a virtual terminal instead of a Point of Sale Terminal.
8. Point of Sale Terminal:
a. Merchant shall be solely responsible for all charges related to the Point of Sale Terminal and the sale of Company Products and Services, including but not limited to the telephone line and access charges associated with connecting the Point of Sale Terminal.
b. Once Merchant has completed and submitted all essential paperwork and documentation to the satisfaction of Company, Company shall:
i. Contact Merchant Directly
ii. Set up your Point of Sale Terminal
iii. Provide you with basic training to use the Point of Sale Terminal and other associated training to enable you to sell Company Products and Services
iv. Issue you a unique Merchant ID (“Merchant ID”) which must be affixed to all communications and submissions to Company. Merchant shall be responsible for maintaining the confidentiality of the Merchant ID as well as Merchant’s user-name and password. Merchant shall be solely responsible for any and all activity undertaken under the Merchant ID Account.
9. The rates and fees charged to the Merchant Retail Location pursuant to the Merchant Agreement shall be subject to final review and approval by Company in its sole discretion.
10. Media Policy. The Merchant, and any employee, agent, representative of the Merchant, is NOT permitted to speak to any representative of the media or any journalist about the Company, Company policies, or the Merchant’s policies or practices in relation to Company. Failure to comply with this policy is grounds for immediate termination of this Agreement and any associated Agreements with Company. The determination of whether this policy has been violated shall rest in the sole discretion of Company.
11. Compensation and Payment Procedures. Merchant Retail Locations shall purchase Products and Services directly from Company using the Company POS System and any other means permitted by Company. “Products and Services” for the purposes hereof shall include any product or service purchased by Merchant Retail Location from Company for the purposes of reselling such to an end consumer or user (“End User”), including but not limited to electronically transmitted personal identification numbers (“PINs”) and physical products provided by Company in any form. The Merchant Retail Location, and Company acknowledge and agree that Company in its sole and reasonable discretion shall have the right to terminate or restrict the ability of any Merchant Retail Location from purchasing any Company Product or Service with or without cause or prior notice at any time.
a. Collection: Merchant shall be responsible for collecting the entire purchase price and any and all fees and applicable taxes due from the consumer End User for any and all Products and Services obtained or procured from Company before transacting any business on the Company POS System, Point of Sale Terminal, and any other related means.
b. Electronic PIN Sales: the purchase price for any electronic PIN purchased by Merchant for resale shall be expressed in the form of a discount rate (“Discount Rate”), which refers to a discount off the face value of such a Product. Your purchase price or “Buy Rate” for a given Product may be determined by deducting Your Discount Rate (“Merchant Discount Rate”) from the face value of the Product. Notwithstanding the foregoing, Company shall be permitted to change any and all Rates for Electronic PIN sales of any Merchant Retail Location at any time at its sole but reasonable discretion for any reason with or without notice.
c. Base Price: For Products and Services which are not electronic PINS and do not specify a Discount Rate, such Products and Services shall be offered to Merchant for a Base Price (“Base Price”). In such event, Merchant will purchase such Products and Services and resell them at a Price determined by Merchant unless Company in its sole and absolute discretion pre-determines and requires Merchant to sell such Products and Services for a set retail price for End Users. In either such event, the difference between Merchant Base Price and the price that Merchant sells such Products and Services to End Users for shall be Merchants gross profit.
d. Transaction Fee: Certain Products and Services may be structured such that they are purchased by Merchant and sold to End User with no Discount Rate and for which Merchant Base Price and selling price are required to be the same. In such event, Company may in its sole and absolute discretion provide Merchant with a profit for the sale of such Products by way of providing Merchant with a “Transaction Fee”. For the purposes of this Agreement, a “Transaction Fee” shall be defined as a fee payable to a given party upon the consummation of a given transaction. It is hereby agreed that the compensation methodology for any Product or Service provided by Company hereunder may be altered such that a transaction fee based compensation may be used rather than a different form of compensation. It is agreed that Company shall establish, and may change the compensation methodology and rates payable for Merchants Retail Locations for all such Products and Services in its sole and reasonable discretion without notice.
e. Other Products and Services: Company may procure, provide and/or acquire the rights to distribute other products or services that it is not currently providing to Merchant (“New Products”). In such event, Company may, in its sole discretion offer Merchant Retail Locations the right to distribute and resell such New Products to End Users under the terms hereof by notifying Merchant Retail Locations with all sale information related to the New Products including but not limited to product descriptions, compensation, and more. A New Product includes but is not limited to, any Product or Service offered by Company for the purposes of resale to End Users, if such Product at the time of introduction is not then offered in its exact same form by Company to Merchant Retail Location, notwithstanding the fact that Company may have offered such or a similar product to Merchant Retail Locations at any other point in time prior to such introduction.
f. Changes and Modifications: Merchant acknowledges and understands that any Products and Services, and any and all associated Discount Rates, Base Prices and/or Transaction Fees that are currently offered and that may be offered in the future may be discontinued, changed or modified by Company in its sole and absolute discretion with or without notice. Additionally, Company may add, subtract, modify or change any Products and/or Services offered to Merchant at any time in its sole and absolute discretion with or without notice.
g. Other Fees and Costs. Merchant is further responsible for other fees associated with this Agreement including but not limited to, setup fees, monthly access fees, and fees for a terminal that Merchant may have leased or purchased from Company (“Fees”). In addition to these Fees, at any time during the term of this Agreement, Company may in its sole and absolute discretion impose additional fees (“Additional Fees”) that Merchant deems reasonable in the regular course of business.
i. In the event that an ACH of Merchant’s account fails, Merchant hereby grants Company the authority to debit Merchant’s account for all such charges and expenses incurred together with a $35 administrative fee per failed ACH transaction. Additionally, the failure of any ACH to post Merchant’s account shall be deemed a material breach of this Agreement, and in addition to all other remedies at law, such a breach shall entitle Company to immediately suspend or terminate this Agreement and all service associated with it.
ii. Merchant authorizes Company to offset any amount owed to Company against any security deposit Merchant may have with the Company.
iii. Merchant is further liable to Company for any and all Products and Services purchased through the Company or Company POS System using the Point of Sale terminal or their Merchant ID Account.
iv. In the event that Merchant obtains a Company associated electronic Product or Service through a Company Point of Terminal and such electronic Product or Service does not work for any reason, Merchant shall notify Company of such occurrence immediately but no later than within twenty four (24) hours of obtaining such an electronic Product or Service. In the event that Company confirms that the Product or Service in question is defective, Company will credit Merchant’s account for the amount paid for such electronic Product or Service. Such determination shall be made in Company’s sole and absolute discretion.
h. Profits and Pay: Any profits and/or payments shall only become payable and accrue, for the duration of this Agreement, when a Product or Service has been validly sold and valid payment for such product has been received by Company. Merchant will receive profit and or pay only for those orders that are completed in accordance with this Agreement, any other associated Addenda, the Company terms and conditions, and state and federal law.
i. Fee Schedule and Rates: Merchant agrees to adhere to the most up to date and current fee schedule and rates Company has approved. This schedule and rates may change at any time without notice to Merchant. Company reserves the right to change rates, schedules, payments, or withhold payments at any time as business conditions warrant at its sole discretion and without notice to Merchant. The Merchant hereby waives notice of any changes to the fee rates, schedules, payments, or withheld payments. Company shall not be responsible for payment to any Merchant agent, employee, or other related party. Company may demand repayment for any amount due to Company from Merchant for any order not in compliance with this Agreement, any other associated Addenda, the Company terms and conditions, and or state and federal law.
j. Deposit: Company shall be permitted to demand a deposit at its sole discretion and offset any amounts due to Company from Merchant for any cause including but not limited to any Service Fees, Bad Debt Fees or other fees provided herein, or established by Company. Such amounts may be offset at any time at the sole discretion of Company. Upon the termination of this Agreement and if found that no financial obligation is owed to Company, Company shall pay in full any monies held in deposit. If any amount is due to Company by Merchant, Company may retain any deposit held in reserve and set it off against all amounts due to Company by Merchant. Merchant hereby grants Company any and all such right to retain and apply deposit to any financial obligation owed to Company.
12. Disputes. In the event of a dispute between Merchant and Company relating to sales, the Company POS System shall be the determining authority. If written notice of any dispute, error or discrepancy is not submitted to Company within seven (7) days of the transaction date such lapse of time shall act as a waiver of Merchant’s right to contest such dispute, error or discrepancy.
13. Branding. Merchant acknowledges and agrees that “SurgePays” is a wholly owned mark of Company and constitutes copyrights and intellectual property of Company. Nothing in this Agreement, including any actions or inactions by the Merchant or any affiliates of the Merchant, shall in any way be interpreted to construe or convey any rights to such marks or any Company intellectual property upon the Merchant or any other party. Merchant’s right to use the trademark, tradename and tradedress “SurgePays" is limited to:
a. that which is required in order to perform Merchant’s duties under this Agreement and
b. that which is specifically provided for in this Agreement.
Merchant acknowledges and agrees that Merchant will not use or claim any right to use any of these the trademarks, tradenames or tradedresses outside of this Agreement or in any form upon termination, expiration of this Agreement, or if requested during this Agreement. Merchant agrees that failure to fully comply with this section shall constitute a material breach under this Agreement and, in addition to any other remedies available to Company, such a breach shall give rise to Company’s right to terminate this Agreement.
14. Equipment, Materials, and Intellectual Property. The following shall remain the property of Company and shall at all times be subject to the ultimate control of Company, even if delivered to the Merchant or any Merchant Agent and or employee: all terminals, handsets, equipment, products, records, inventory, designs, tents, posters, banners, and field marketing materials (“equipment and materials”) and all intellectual property provided to the Merchant in connection with this Agreement, including (but not limited to) Company’s logo or other trademarks. Merchant assumes all risks of damage to or loss of any Company equipment and materials while Merchant has possession (either actual possession or constructive possession). Constructive possession includes, but is not limited to, the period of time that equipment and materials (including all returned equipment) travel through the channels of the mail or delivery service back to the possession of Company. If the Merchant purchases insurance from the mail or delivery service and due to loss or damage of the equipment and materials the Merchant receives compensation from the insurance policy, Company is entitled to such insurance payouts. Company shall retain title and a security interest in all equipment and materials belonging to Company. The provision of the equipment and materials and the opportunity to earn commissions under this Agreement provide sufficient consideration for such security interest. Merchant will lose all rights with respect to the equipment and materials if Merchant does not abide by the terms and conditions of this Agreement. Company reserves, among other secured creditor rights, the right of filing a financing statement concerning the consignment inventory and the right of self-help repossession of the consignment inventory in case of default. Inventory audit actions by Company may be done without advanced notice to Merchant. Merchant hereby waives notice of any inventory audit actions done by Company.
15. Non Transfer. All Company Merchant Agreement’s (whether partially or fully completed), Merchant accounts, and all related records are owned by Company and may not be transferred, assigned, sold or exchanged, in whole or in part, by Merchant. Violation will result full civil and criminal penalties as allowed by law.
16. Company POS System Intellectual Property. Merchant agrees that Company owns all rights, title, and interest in and to the Company POS System software, and any other technology or property provided by Company and used by Merchant or any Third Party Processor to access the Company POS System, including all intellectual property rights therein. In addition, Company maintains ownership of all point of sale marketing materials including banners, posters, window stickers etc. as well as POS terminal equipment. All such property of Company shall be returned within 10 days of expiration of this agreement.
a. Restrictions on Use. Merchant acknowledges that Company POS System software, its structure, organization and source code constitute valuable trade secrets of Company. Accordingly, Merchant agrees that it will not, and will not permit any third party, to:
i. access to the Company POS System other than the parties authorized under this Agreement;
ii. modify, create derivative works of, adapt, alter or translate the Company POS System;
iii. sublicense, lease, rent, loan, distribute, provide access to, or otherwise transfer any aspect of the Company POS System to any third party not authorized under this Agreement;
iv. reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of any aspect of the Company POS System; or
v. copy, install or use the Company POS System except as expressly permitted in this Agreement.
17. No Implied Licenses. There are no implied licenses under this Agreement, and any rights not expressly granted to Merchant hereunder are reserved by Company. Merchant is not granted any patent license under this Agreement. Merchant further agrees that its rights to use the Company POS System are provided solely by this Agreement and are limited by the terms and conditions of this Agreement.
18. Credit Check Authorization. Merchant authorizes Company to obtain personal and company credit reports from credit bureaus and verify information provided in this Agreement. Merchant also represents that Merchant is not a party to any agreement that would prevent Merchant from doing business with Company or its affiliates and/or partners.
19. Indemnification. Merchant agrees to indemnify, defend and hold harmless Company against any and all claims, fines, forfeitures, liabilities, lawsuits, damages, losses, judgments, costs, fees and expenses incurred by Company, including but not limited to, reasonable attorney’s fees under this agreement, to the full extent that such arise from any fraudulent activity or willful misconduct on the part of the Merchant including any employee, agent or affiliate of Merchant.
a. General Warranty: Company and Merchant warrant that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties hereunder does not and will not conflict with or result in a breach of any other agreements of such party or any judgment, order, or decree by which such party is bound.
b. Warranty Disclaimer: THE COMPANY POS SYSTEM AND ANY PRODUCT OR SERVICE SOLD USING THE COMPANY POS SYSTEM ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED, OR BASED ON STATUTE, TORT OR ANY OTHER THEORY OF LAW. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. MERCHANT ACKNOW LEDGES AND AGREES THAT COMPANY MAKES NO REPRESENTATIONS AS TO THE REASONABLENESS, APPROPRIATENESS, QUALITY OR FUNCTIONALITY OF PRODUCTS OR SERVICES PROVIDED BY COMPANY THROUGH THE COMPANY POS SYSTEM. ANY PRODUCT OR SERVICE PROVIDED BY COMPANY TO MERCHANT OR ANY PARTY AFFILIATED W ITH DISTRIBUTION IS ON AN “AS IS” BASIS AND SUBJECT TO THE TERMS AND CONDITIONS IMPOSED BY SUCH PRODUCT’S RESPECTIVE CARRIER OR PROVIDER AS WELL AS THE ABILITY OF SUCH CARRIER OR PROVIDER TO FULFILL SUCH TERMS AND CONDITIONS. IN NO EVENT SHALL COMPANY BE HELD LIABLE FOR THE QUALIT Y, THE TERMS OR CONDITIONS, OR THE FAILURE OF ANY CARRIER OR PROVIDER TO FULFILL THE OBLIGATIONS OF ANY PRODUCT OR SERVICE SUPPLIED THROUGH THE COMPANY POS SYSTEM.
c. Limitation of Liability: IN NO EVENT SHALL COMPANY BE LIABLE TO MERCHANT OR ANY PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING THOSE RESULTING FROM INTERRUPTION OF USE, LOSS OR CORRUPTION OF DATA, VIRUSES, OR LOST PROFITS, ARISING FROM OR RELATED TO THIS AGREEMENT OR THE COMPANY POS SYSTEM WHETHER OR NOT THE PARTY SUFFERING LOSSES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
d. Restricted Warranties. Merchant will not make any warranties or representations to any other party concerning the Company POS System and the Company Software. Merchant shall further indemnify and hold harmless Company for
i. any warranties or representations Merchant makes on behalf of Company to any party, whether such warranties or representations are express or implied, and
ii. any liability or obligation of Merchant created by any relationship or agreement(s) between Merchant and any customers and/or associated vendors whether such liability is based in contract, tort, or any other theory of law.
Company will not make any warranties or representations to any customers, vendors, or to any third parties on behalf of the Merchant unless such warranties concern specific obligations under this Agreement. Company shall indemnify and hold harmless Merchant for any warranties or representations Company makes on behalf of Merchant to customers, and or vendors in contravention of this Agreement.
21. Confidentiality. Merchant and Company agree to keep the terms and conditions of this Agreement confidential. For the duration of this Agreement and for six months following its termination, Merchant agrees that it shall not target, solicit, or enter into negotiations with any Company affiliated Merchant Retail Location, Company affiliated Merchant or other party that is known by Merchant to already be affiliated with Company (whether such affiliation was the result of Merchant’s efforts or otherwise) for the purpose of inducing such party to:
a. sever its existing affiliation with Company, or
b. sell or distribute a product or service that competes with any Company Product or Service.
Additionally, for such period, Merchant shall not offer for sale or resale to any Company affiliated Merchant Retail Location, any electronic product or service supplied by any other party that is competitive to a Product or Service provided by Company. It is expressly acknowledged and agreed by Merchant that the failure to strictly comply with this provision shall constitute an incurable material breach of this Agreement, and, in addition to any other rights or remedies available to Company pursuant to this Agreement or applicable law, such actions shall give rise to an immediate right of Company to terminate this Agreement.
22. Insurance. At all times, Merchant shall maintain through a reputable carrier licensed to do business, general liability insurance and workers compensation insurance. Merchant shall provide to Company with satisfactory proof of insurance upon execution of this Agreement. Merchant shall immediately notify and provide satisfactory proof to Company in writing of any lapse, cancellation, or modification of insurance coverage herein.
23. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and there are no other promises or conditions in any other agreement, whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties with respect to the subject matter of this agreement.
24. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. The terms of this Agreement shall control over any conflicting terms in any referenced agreement or document.
25. Cumulative Rights. Any specific right or remedy provided in this Agreement will not be exclusive but will be cumulative of all other rights and remedies.
26. Compliance with Laws. Each party shall comply in all respects with all applicable legal requirements governing the duties, obligations, and business practices of that party and shall obtain any permits or licenses necessary for its operations. Neither party shall take any action in violation of any applicable legal requirement that could result in liability being imposed on the other party.
27. Applicable Law and Arbitration. This Agreement will be governed by the laws of Nevada without regard to its choice of law provisions. All disputes arising out of or in connection with this Agreement shall be finally resolved through arbitration under the administration of Federal Arbitration, Inc. and in accordance with its Rules for Arbitration.
28. Amendments and Waiver. Any amendments to or waiver of any provision of this Agreement must be in writing and signed by both parties. Failure of either party to insist on strict compliance with any of the terms, covenants, and conditions of this agreement shall not be deemed a waiver of such terms, covenants, and conditions, or of any similar right or power hereunder at any subsequent time.
29. Assignment or Transfer. Company may assign or transfer this Agreement. Merchant may not assign or transfer (directly or indirectly) this Agreement without prior written consent from Company, which may be withheld at the discretion of Company.