MERCHANT PERSONAL GUARANTEE
WHERE AS, Merchant Retail Location (hereinafter "Merchant") and SurgePays
Inc., along with its subsidiaries (hereinafter "SurgePays") have entered
into a Merchant Retail Location Agreement (hereinafter "Agreement");
WHERE AS (hereinafter "Guarantor")
does hereby personally guarantee the performance of the Agreement by and
between Merchant and SurgePays;
NOW, THEREFORE, in consideration of the foregoing provisions and the
terms and conditions herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the following terms and conditions apply:
1. Guarantor residing at hereby personally
guarantees all of the obligations of Merchant and agrees to be
personally bound with Merchant for the prompt performance and
obligations under the Agreement dated 2024-10-05 08:38:00,
including without limitation the payment of all goods, wares, and
merchandise as Merchant may from time to time select and purchase on
credit from SurgePays.
2. In the event that Merchant fails to make any payment to SurgePays, or
fails to perform in any manner with regard to said Agreement between the
two parties, the Guarantor does hereby promise to make all payments to
SurgePays in the same manner as if Guarantor were the principal of the
Agreement..
3. The Guarantor agrees that, with or without notice or demand, the
Guarantor shall reimburse SurgePays, to the extent that such
reimbursement is not made by Merchant, for all expenses (including
counsel fees) incurred by SurgePays in connection with any of the
Liabilities of Merchant or the collection thereof.
4. This guarantee is a continuing guarantee and shall remain in full
force and effect irrespective of any interruptions in the business
relations of the Merchant with SurgePays.
5. No delay on the part of SurgePays in exercising any rights hereunder
or failure to exercise the same shall operate as a waiver of such
rights; no notice to or demand on the Merchant or Guarantor shall be
deemed to be a waiver of the obligations of the undersigned or of the
right of SurgePays to take further action without notice or demand as
provided herein; not in any event shall any modifications or waiver of
the provisions of this guarantee be effective unless in writing nor
shall any such waiver be applicable except in the specific instance for
which given.
6. This guarantee is, and shall be deemed to be, a contract entered into
under and pursuant to the laws of the state of Nevada and shall be in
all respects governed, construed, applied and enforced in accordance
with the laws of said State, and no defense given or allowed by the laws
of any other state of the United States of America shall be interposed
in any action hereon unless defense is also given or allowed by the laws
of the State of Guarantor.
7. Merchant agrees to receive communications via email and SMS from
SurgePays regarding information related to their account. You may reply
STOP to opt-out at any time via SMS or unsubscribe via email.
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 SurgePays Inc., along
with its subsidiaries (hereinafter "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 2024-10-05 08:38:00
("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:
TERMS
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 one hundred and fifty dollars ($150) or more per
month.
b. The period allotted to reach this minimum will be ninety (90) 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 of twenty-seven dollars ($27)
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.
20. Warranties.
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.
THIS AGREEMENT is subject to the following terms and conditions:
1.The equipment described above is and at all times shall remain the sole
property of the SUPPLIER.
2.SUPPLIER agrees to provide all service and maintenance necessary, in
its sole discretion, to keep the equipment in good working order.
3.The equipment shall be located at the site location listed above, and
positioned in such a way that is mutually agreed to by the "STORE" and
SUPPLIER. The "STORE" agrees that the device will not be relocated
within the premises without first contacting SUPPLIER and no other
equipment with similar products will be installed at this location
during the time covered by this agreement.
4.The "STORE" agrees to notify SUPPLIER immediately in the event of
machine failure or malfunction, vandalism, fire, theft, or any other
occurrence, which would impede the usual uninterrupted operation of the
equipment.
5.SUPPLIER reserves the absolute and unconditional right to remove and /
or replace the equipment from or at the premises at any time, with
notice to the "STORE", during regular business working hours.
6.STORE management will provide assistance to customers and cooperate
with SUPPLIER to ensure good customer experience for equipment users (if
applicable).
7.SUPPLIER agrees to pay the "STORE" percentage of commission from
equipment sales according to the SUPPLIER's Commissions Schedule.
8.The corporation or "STORE" will allow RWJ Advanced Marketing LLC / DBA
Ugo Hub to use the "STORE'S" physical address as leased space for the
equipment; the consideration for which shall be the commissions earned
from the sales off the equipment.