Last Updated: September 30, 2020
This Advance Agreement ("Advance Agreement") is a legal agreement between the merchant party ("Merchant") and Resolve Corp. ("Resolve"), a Delaware corporation, and sets forth the terms and conditions under which Resolve authorizes Merchant to market and offer the Advance Services, as defined herein.
To the extent Merchant and Resolve have previously entered into a Merchant Account Agreement, this Advance Agreement supersedes such Merchant Account Agreement with respect to all Advance Services (as defined below) provided by Resolve from and after May 29, 2020, and such Merchant Account Agreement shall have no further force or effect with respect to any Advance Services provided on or after such date.
WHEREAS, Resolve provides a commercial charge account program (the "Advance Services") that offers certain commercial financing options, including, but not limited to, open-end charge accounts and payment deferral options through Resolve's proprietary financial platform and related application programming interfaces ("APIs").
WHEREAS, Merchant wishes to offer Resolve's Advance Services to qualifying businesses seeking to finance the purchase of certain goods or services offered and sold by Merchant ("Customers").
WHEREAS, Resolve agrees to make the Advance Services available to the Merchant for use by its Customers in accordance with the terms and conditions of this Agreement.
2. Terms and Conditions of Merchant Participation.
- Merchant acknowledges and agrees that Merchant's access to, and Resolve's obligation to offer, the Advance Services is contingent upon the evaluation and approval of Merchant by Resolve, in its sole discretion. Such evaluation may include, but is not limited to, evaluating any history of litigation and customer complaints, historic chargeback rates and losses, tax returns, legal status, the financial background of Merchant's owner(s) (including credit reports or other background information), the overall financial health of Merchant, the nature of the Merchant's business and any other information reasonably requested by Resolve. Merchant shall provide all supporting materials that Resolve may reasonably request while performing such evaluation. Merchant represents, warrants, covenants and agrees that all information provided to Resolve in connection with the evaluation and approval of Merchant will be true, accurate and complete in all respects. Resolve reserves the right, in its reasonable discretion from time to time, to reassess Merchant's eligibility for the Advance Services at any time and from time to time, for any reason and, upon a negative determination, terminate this Agreement and provide a pro rata refund of any prepaid fees.
- During the Term, Merchant will not integrate, market, sell or promote any Competing Service Provider's application that includes (i) commercial charge accounts or payment deferral options or (ii) a combination of other lending functionality identical or substantially similar to the Advance Services. "Competing Service Provider" means any person not party to the Agreement who markets commercial charge accounts or payment deferral options to business customers through a mobile or electronic interface, web browsers, or point-of-sale application.
- Merchant agrees that Customer disputes will be resolved in accordance with the Customer Dispute Resolution Policy ("CDRP").
- Merchant agrees that the following types of items are ineligible for the Advance Services ("Prohibited Items"): ammunition, firearms, firearm parts or accessories, weapons or knives regulated under applicable law, narcotics, steroids, controlled substances, drug paraphernalia, items infringing third-party intellectual property, and any illegal or illicit items, activities or transactions.
- The use of the Advance Services is limited to the United States.
- The Advance Services may contain technological measures designed to prevent unauthorized or illegal use of the Advance Services. Resolve may use these measures to maintain the security and reliability of the Advance Services, verify Merchant's compliance with the terms of this Agreement and enforce Resolve's rights, including all intellectual property rights, in and to the Advance Services. Resolve may restrict or suspend Merchant's access to the APIs and the Advance Services as necessary to protect the APIs against misuse and to ensure the reliability and security of the Advance Services.
- Resolve and its representatives may collect and use diagnostic, technical and related information regarding the performance of the APIs or the Advance Services and Merchant's use of the APIs and the Advance Services to monitor and improve the performance of the APIs and the Advance Services and to enhance the features and functions of the APIs and the Advance Services. Such data is owned by Resolve and is Resolve's Confidential Information.
3. Merchant Responsibilities.Merchant shall be responsible for:
- Establishing and maintaining a United States depository account ("Bank Account") in good standing and informing Resolve of any changes to such account;
- Taking such actions as are reasonably requested by Resolve to integrate or implement the Advance Services with Merchant's sales and finance processes or to effectuate the implementation of such Advance Services through a mutually acceptable method determined in good faith. Merchant shall use commercially reasonable efforts to cause such integration or implementation to be operational within sixty (60) days of the Effective Date. Merchant agrees that it is solely responsible for engaging in testing to ensure the proper functioning of the APIs in combination with Merchant's own IT systems. Merchant's commercial use of the APIs constitutes an acknowledgment that the Advance Services were tested to Merchant's satisfaction;
- Maintaining commercially reasonable business practices consistent with the industry standards applicable to Merchant as related to Merchant's shipping and service fulfillment obligations arising from Merchant's contractual relationships with Customers. This shall include, but is not limited to, shipping goods or providing services financed through the Advance Services immediately when a transaction is Captured by Merchant and providing Resolve with shipping carrier and tracking information upon request.
- Maintaining a refund and return policy that is clearly displayed or otherwise easily accessible by Customers on Merchant's website or order documentation prior to the completion of purchase;
- Using reasonable efforts to cooperate with Resolve in marketing and promotional campaigns, which shall be mutually agreed by Resolve and Merchant. Merchant agrees to include Resolve's name and/or logo wherever Merchant markets, sells or promotes the Advance Services; provided that, in no event shall Merchant use Resolve's name or product in Merchant's customized marketing or promotional materials without Resolve's prior written approval, which may be withheld in its sole discretion. Merchant shall submit any such proposed marketing or promotional materials or other materials that refer to or display Resolve Marks (as defined below) to Resolve for review, and Resolve shall have ten (10) business days to respond to any such submission;
- Complying with all applicable U.S. laws and regulations.
4. Resolve Responsibilities.Resolve shall be responsible for:
- Making commercially reasonable efforts to provide to Merchant the Advance Services described in the Advance Agreement;
- Providing Merchant with information, tools or services necessary for Merchant to integrate Resolve's Advance Services, including any corresponding production software key, in a timely manner, and taking such actions as are reasonably requested by Merchant to facilitate Merchant's implementation of Advance Services;
- Using commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of the Advance Services; and
- Complying with all applicable U.S. laws and regulations.
5. Program Terms for Resolve Advance Services; Fees.
- Assignment of Indebtedness. Each time Merchant conducts a sale that is processed through the Advance Services, Merchant will and hereby does assign to Resolve (including its subsidiaries, affiliates, agents, and assigns) any indebtedness created between Merchant and Customer (the "Assignment of Indebtedness"). In exchange for and conditioned upon the Assignment of Indebtedness and the Advance Fees (as defined below), Resolve will provide an Advance (as defined below) from the sale.
- When a Successful Transaction is Captured (as defined below) through the Advance Services, Resolve shall remit payment (the "Advance") to the Merchant in accordance with the terms of this Advance Agreement. The amount of the Advance shall be equal to the value of the Successful Transaction multiplied by the Advance Rate (as defined below).
- Once the Customer pays Resolve for the full value of a Successful Transaction, Resolve will remit payment to the Merchant for the difference of the full value of that Successful Transaction and the Advance for that Successful Transaction (the "Balance"). In the event the Customer pays Resolve less than the full value of a Successful Transaction, but more than the Advance for that Successful Transaction, Resolve shall remit payment to the Merchant for the difference of the amount actually received by Resolve and the Advance. In the event the Customer pays Resolve less than the Advance, then Resolve has no obligation to pay Merchant any additional amounts.
- If Merchant receives payment directly from a Customer for a Successful Transaction that was processed with the Advance Services, Merchant must notify Resolve immediately so that Resolve can debit Merchant for repayment of the Advance.
- Notwithstanding anything to the contrary in this Section 5(c), all payments to Merchant by Resolve are subject to reduction or offset as set forth in this Advance Agreement.
- The "Advance Fees" are equal to (x) the percentage set forth beside the Trade Credit Terms on the Order Form, multiplied by (y) the applicable Advance Rate, multiplied by (z) the gross dollar amount of sales that are (a) approved by Resolve and (b) Captured by Merchant ("Successful Transactions"). Resolve will assign each Customer an "Advance Rate", depending on the Customer's credit quality and other risk attributes. A sale is "Captured" by Merchant (i.e., Merchant becomes entitled to payment of the Advance) when Merchant: (1) acknowledges to Resolve that a pending credit transaction with a Customer was created through the Resolve platform; (2) agrees to fulfill the pending transaction; and (3) ships the goods or provides or otherwise makes the goods or services available to the Customer. "Order Form" means the online or written form between Resolve and Merchant evidencing the initial subscription for the Advance Services approved by Merchant and any subsequent Order Forms submitted thereafter. Resolve reserves the right to revise the Fees at any time upon providing thirty (30) days' prior written notice to Merchant.
- Merchant shall pay to Resolve the Advance Fees, which may be credited by Resolve against any amounts payable to Merchant. All Advance Fees are due immediately, except as otherwise expressly noted herein. Notwithstanding anything else contained herein, the Advance Fees shall be nonrefundable after the date that is five (5) days after a sale is Captured. Resolve may revise its billing procedures at its sole discretion with 30-day prior written notice to Merchant.
- Merchant may not impose on a Customer any surcharge or fee for use of the Advance Services greater than similar fees for other payment methods that Merchant supports.
- Returned Merchandise; Refunds. Subject to the CDRP, Resolve shall not hold Customer liable for any amount arising from Customer's purchase if Customer provides Resolve with reasonably detailed documentary evidence showing that the product in question was returned to Merchant in accordance with Merchant's stated return policy. In the event that a purchase is returned to Merchant by a Customer following a Successful Transaction or when Merchant otherwise determines that a refund is owed to a Customer, Merchant shall: (a) promptly process such refund owed to the Customer so that Resolve may credit the Customer's outstanding balance accordingly; (b) return to Resolve the amount of such refund; and (c) issue only full or partial refunds and not store credit. In the case of partial refunds, Merchant shall be solely responsible for determining the amount of such refund and liable for any dispute with a Customer relating thereto.
- Payment Schedule.
- (i) Once the Bank Account information has been reviewed and verified by Resolve, subject to the terms hereof, Resolve will begin making periodic payments to Merchant. Resolve will initiate transfer of Settlement Funds to Merchant's Bank Account upon a Successful Transaction. The applicable "Settlement Funds" shall consist of the total dollar amount of Successful Transactions not included in previous payments to Merchant by Resolve, less (a) accrued but unpaid Fees; (b) amounts relating to disputed transactions pursuant the CDRP; and (c) any other amounts owed by Merchant to Resolve under the Agreement (including refunds as provided in Section 5(d)).
- In the event where the Settlement Funds amount is negative, Merchant hereby authorizes Resolve to debit Merchant's Bank Account for any amounts due and payable under this Agreement.
- Resolve reserves the right to change the timing of any payment of Settlement Funds or suspend payouts to Merchant's Bank Account in the event Resolve determines that such action is necessary due to excessive disputes or other suspicious activity associated with Merchant's use of the Advance Services or if required by law or court order, with such determination in Resolve's sole discretion.
6. Fraudulent Transactions.
If Merchant or Customer changes product shipping details, either before or after a Successful Transaction, Merchant assumes the risk of loss of the value of the transaction unless such changes have received the prior written approval of Resolve. Notwithstanding anything else contained herein, in the event Resolve informs Merchant that a Customer transaction is fraudulent or likely fraudulent prior to Merchant shipping goods or providing services, and Merchant ships the goods or provides the services notwithstanding this information, Merchant is liable for any loss resulting from such transaction. For the avoidance of doubt, Resolve is under no obligation to detect fraud or provide any such notice.
7. Independent Contractors.
The parties to this Agreement are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise or agency relationship between the parties. Neither party has the authority, without the other party's written approval, to bind or commit the other party in any capacity.
8. License Grants and Intellectual Property.
- Service License. During the Term and subject to the terms and conditions of this Agreement, Resolve hereby grants Merchant a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Advance Services and integrate the APIs in order to provide and to enable Customers to access, use, perform and display (publicly or otherwise) the Advance Services.
- Trademark License. During the Term and subject to the terms and conditions of this Agreement, each party grants to the other party a limited, revocable, non-exclusive, non-transferable license, non-sublicensable right to use, reproduce, display, distribute and transmit the other party's name, logo and any other trademarks, trade names, service marks, photographs, graphics, artwork, text and other content provided or specified by such party in any and all media formats, whether registered or unregistered, (collectively the "Marks") solely in connection with and solely to the extent reasonably necessary for the purposes of this Agreement; provided, however, that, such license to Merchant shall be limited to the Resolve Marks described in http://merchants.resolvepay.com. Use of the Marks does not create in either party's favor any right, title or interest in the Marks or any continuing rights to market or distribute the Advance Services. Neither party shall register or apply for registration of any of the other party's Marks (or any similar trademarks, service marks or logos) for itself, or any other party. Each party agrees to cooperate with the other if the other party seeks to proceed with any infringement action regarding such rights.
- Resolve Intellectual Property. This Agreement is not a sale and does not convey to Merchant any rights of ownership in or related to the Advance Services. Merchant agrees and acknowledges that Resolve is the exclusive owner of and retains all right, title, and interest in any and all software, technology or tools used by Resolve to promote, market, sell, generate, or distribute the Advance Services, including Resolve's Marks and/or copyrighted material (collectively, "Resolve IP"). Merchant may not, nor may Merchant allow any third party to (i) modify, translate, reverse engineer, decompile, disassemble, otherwise attempt to derive source code from, or create derivative works based on, the Resolve IP; (ii) make unauthorized copies of the Resolve IP; (iii) distribute or market the Advance Services and any Resolve IP, except to Customers, without Resolve's prior written authorization; (iv) remove any proprietary notices, labels or Marks on or in any copy of the Advance Services or Resolve IP; (v) alter or remove any warranties, disclaimers, and license agreements shipped with the Advance Services; or (vi) use the Advance Services and Resolve IP in any manner or for any purpose other than for which the Advance Services and Resolve IP have been incorporated or for which the Advance Services and Resolve IP have been provided.
- Feedback License. Merchant grants to Resolve a worldwide, perpetual, irrevocable, royalty-free, assignable, sublicensable, transferable license to use and incorporate into the APIs and/or the Advance Services any suggestion, correction or other feedback provided by Merchant relating to the Advance Services.
- Restrictions on Use of Advance Services. Merchant will not: (i) offer for sale or lease, sell, resell, lease or in any way transfer the Advance Services; (ii) attempt to create a substitute or similar service through the use of, or access to, the Advance Services; (iii) and will ensure that Customers and third parties do not access or use the Advance Services in a way intended to avoid incurring fees, misrepresent usage or performance data, misrepresent transaction amount or item data, or misrepresent user information; or (iv) perform any benchmark tests against a competing provider (e.g. conversion lift, approval rates, average order value, or share of cart, etc.) without the prior written consent of Resolve (any results of such permitted benchmark testing shall be deemed Confidential Information of Resolve and, other than as provided in Section 10 (Confidential Information), shall not be shared with any other party without Resolve's prior written consent). Merchant will immediately notify Resolve if Merchant becomes aware of any material breach relating to the Advance Services.
9. Representations and Warranties.
Each party hereto represents and warrants that: (a) if an entity, it is duly formed, validly existing, and in good standing under the laws of its state of incorporation or formation; (b) it has the right, power and authority to enter into this Agreement; (c) when executed and delivered by such party, it will constitute a legal, valid and binding obligations of such party; (d) it shall comply at all times with all applicable U.S. laws, rules and regulations in connection with carrying out its obligations contained herein; and (e) neither the execution, delivery or performance of this Agreement nor the consummation of the transaction contemplated hereby shall conflict with, result in a violation or breach of, or require the consent of any person under the terms, conditions or provisions of any contract, notice, indenture, license, permit, lease or any other instrument of such party.
10. Confidential Information.
Neither party hereto shall use the other party's Confidential Information for any purpose whatsoever outside of the scope of this Agreement, nor shall either party disclose such Confidential Information to any third party without the prior written consent of the other party. Each party further shall take all reasonable precautions to prevent any unauthorized disclosure of the other's Confidential Information. Each party shall limit access to Confidential Information to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and shall be responsible for any breach of this Section 10 by such employees, contractors and agents. It is understood that each party's Confidential Information shall remain the sole property of such party. In the event that either party becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any Confidential Information, such party will, to the extent legally permissible, provide the other party with notice of such circumstances and will limit such disclosure to only what is specifically required. This provision shall supersede any previous agreements, whether written or oral, between the parties hereto regarding Confidential Information. As used in this Agreement, "Confidential Information" means any proprietary information, technical data, demographic information, Customer data, trade secrets or know-how, including but not limited to research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed by either party either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment but excludes any such information that: (a) was lawfully in a party's possession before receiving it from the other party; (b) is provided in good faith to one party by a third party without, to such party's knowledge, breaching any rights of the other party; (c) is or becomes generally available to the public other than through a violation of this Agreement; or (d) was or is independently developed without the use of or reference to the Confidential Information.
THE APIS AND THE ADVANCE SERVICES ARE PROVIDED "AS IS" AND, EXCEPT AS SET FORTH IN SECTION 9, RESOLVE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED BY RESOLVE, EXCEPT TO THE EXTENT ANY SUCH EXCLUSION WOULD CONTRAVENE ANY APPLICABLE STATUTE.
Merchant agrees to defend, indemnify and hold, Resolve and its affiliated and related entities, and each of their respective officers, directors, agents and employees, harmless from and against any third party claims, lawsuits, investigations, penalties, damages, losses or expenses (including, but not limited to, reasonable attorney's fees) arising out of or relating to any of the following: (a) any misrepresentation, breach or alleged breach of, or default in connection with any of the representations, warranties, covenants or other provisions of Merchant contained in this Agreement (or any agreement incorporated by reference herein); (b) any claim arising out of or relating to the goods or services provided by Merchant, including but not limited to, any claims for false advertising, unfair business practices, product defects, sales or distribution of Prohibited Items, personal injury, death or property damages; (c) any claim arising from Customers' use of the Advance Services; or (d) Merchant's gross negligence or willful misconduct.
13. Limitation of Liability.
IN NO EVENT SHALL RESOLVE BE LIABLE OR OBLIGATED TO MERCHAN OR ANY THIRD PARTY FOR ANY LOSS OF, OR DAMAGE TO, DATA OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, COSTS, EXPENSES, OR LOSSES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE. RESOLVE'S SOLE AND COMPLETE LIABILITY TO MERCHANT FOR ANY CLAIMS ARISING OUT OR OF RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY MERCHANT TO RESOLVE PURSUANT TO THIS AGREEMENT DURING THE PREVIOUS TWELVE MONTH PERIOD PRECEDING THE EVENT OR SITUATION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
14. Dispute Resolution; Governing Law.
- If any dispute arises under this Agreement, including, but not limited to, disputes relating to Fees, amounts withheld from payments by Resolve and amounts payable to Resolve with respect to customer disputes or indemnities, both parties agree to make a good faith effort to negotiate and resolve the dispute within thirty (30) days' written notice of such dispute. No action, suit, arbitration or other proceeding may be commenced (other than for undisputed amounts) before the parties have attempted to resolve the dispute pursuant to this provision, unless immediate injunctive relief is being sought.
- (b) This Agreement shall be governed by and construed in accordance with the laws of the State of California notwithstanding any conflict of law rules. Any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, shall be determined by arbitration in San Francisco, California before one arbitrator. The arbitration shall be administered by Judicial Arbitration and Mediation Advance Services pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the "Expedited Procedures" described therein. Judgment on the award may be entered by any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In all arbitrations, each party will bear the expense of its own counsel, experts, witnesses, administrative fees and expenses, and preparation and presentation of evidence at the arbitration. If for any reason this arbitration clause is deemed inapplicable or invalid, both Merchant and Resolve waive, to the fullest extent allowed by law, any claims to recover punitive or exemplary damages and any right to pursue any claims on a class or consolidated basis or in a representative capacity.
15. Force Majeure.
Except for each party's payment obligations, neither party will be responsible for any failure or delay in performance due, in whole or in part, directly or indirectly, to any contingency, delay, failure, or cause of any nature beyond its reasonable control, including, without in any way limiting the generality of the foregoing, fire, terrorism, epidemic, earthquake, storm, flood or other weather, unavailability of necessary utilities or raw materials, strike, lockout, unavailability of components, war, riot, acts of God, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement) or other event that is traditionally recognized by California courts as an event of force majeure.
Neither party may assign all or part of this Agreement without such assignment being considered a change to the Agreement without the prior written consent of the other party. Notwithstanding the foregoing, such consent shall not be required in the case of an assignment in connection with a merger, consolidation, change or control or the sale or transfer of all or substantially all the party's assets related to the business covered hereby. Following any assignment permitted hereunder, the assignee shall have the same rights and obligations as the assignor and shall agree in writing to be bound by the terms and conditions of this Agreement.
No termination of this Agreement will release either party from any payment or other obligations owed to the other, or affect any rights or liabilities of either party with respect to any breach of this Agreement. Sections 5, 8(c), 8(d), 10, 11, 12, 13, 14 and 17 shall survive termination of this Agreement until the obligations of those sections are completed.
18. Updates to Advance Agreement; Notice.
Resolve may prospectively add to, delete, or amend this Advance Agreement at any time. We reserve the right, subject to Law, to deliver to you any Notice of changes to existing terms or the addition of new terms by posting an updated version of this Advance Agreement on the Resolve website or by delivering notice of changes to you electronically, and your continued use of the Advance Services will constitute acceptance of any these amended or new terms.
The failure of any party to enforce any of the terms and conditions of the Agreement shall not constitute a waiver of that party's right thereafter to enforce each and every term and condition of this Agreement.
20. Entire Agreement; Severability.
This Advance Agreement constitutes the entire understanding and contract between the parties and supersedes all prior agreements (including any prior agreement entered into between the parties), understandings, arrangements, commitments or representations, oral or written, between the parties with respect to the subject matter hereof. To the extent of any conflict between this Advance Agreement and the Order Form, the terms of the Order Form shall control. The terms and conditions of this Agreement will further supersede all pre-printed terms and conditions contained on any purchase order or other business form submitted by Merchant to Resolve. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.