Merchant Services Agreement

Last Updated: July 26, 2022

This Agreement is entered into by and between Merchant and Resolve as of the Effective Date.

WHEREAS, Resolve offers a proprietary platform and related APIs, software, processing, and suite of other services designed to help Merchant offer and administer its trade credit terms to Merchant’s Customers (collectively, the “Services”), and Merchant wishes to subscribe for the Services.

WHEREAS, Merchant wishes, from time to time, to engage in Receivables Purchase Transactions, and Resolve may, from time to time, enter into Receivables Purchase Transactions.

NOW, THEREFORE, the Parties agree as follows:

1. Definitions.

Unless otherwise defined in this Agreement, the following terms will have the following meanings

“ACH” means an Automated Clearing House transaction processed on the network sponsored by the National Automated Clearing House Association.
“Agreement” means this Merchant Services Agreement.
“APIs” means application programming interfaces.
“Bank Account” means a business demand account, acceptable to Resolve in its sole discretion, that is titled in Merchant’s legal name at a depository institution the deposits of which are insured up to applicable limits by the Federal Deposit Insurance Corporation, which is used for Merchant’s business operations and is able to transact and process ACH account debits and credits.
“Collections” means, with respect to any Receivable, all amounts collected in respect of such Receivable pursuant to the applicable Customer Contract with respect to such Receivable, together with any proceeds of collateral and other amounts obtained through enforcement of, or exercise of remedies under, such applicable Customer Contract.
“Confidential Information” means any proprietary information, technical data, demographic information, Customer data, trade secrets, or know-how, including 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: (i) was lawfully in a Party’s possession before receiving it from the other Party; (ii) 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; (iii) is or becomes generally available to the public other than through a violation of this Agreement; or (iv) was or is independently developed without the use of or reference to the Confidential Information.
“Customer” means a business entity, association, sole proprietorship, or any other similar organization to whom Merchant provides goods or services, or any customer, designee, assignee, or successor of such person.
“Customer Contract” means, with respect to any Receivable, any order, invoice, receipt, note, loan agreement, installment agreement, trade credit agreement, or other document or agreement evidencing Merchant’s right to receipt of payment on account of such Receivable.
“Dispute” means a situation in which a Customer questions any goods or services underlying a Receivable or otherwise asserts any offset, set-off, defense, claim, counterclaim, dispute, deduction, reduction, discount, allowance, right of return, right of recoupment, or warranty claim of any kind relating to such goods or services; and is unwilling to pay the Receivable or a portion of the Receivable. Disputes between the Customer and Merchant may arise for many reasons, including: (i) goods or services were not provided as agreed or contracted; (ii) cancellations or returns; (iii) damaged or defective goods or services; (iv) goods not received or services not performed; (v) dissatisfaction with goods or services provided; and (vi) billing errors. A Customer’s inability to pay a Receivable due to insolvency is not a Dispute.
“Effective Date” means the date on which Merchant signs the Order Form.
“Discount” means the amount disclosed to Merchant, on the Order Form or otherwise, that Resolve charges per transaction to purchase a Receivable. Discounts may vary by transaction and by Customer.
“Lien” means any lien, liability, claim, charge, restriction, condition, option, right, security interest, hypothecation, pledge, claim, set-off, offset, participation, encumbrance, or other similar right, of any kind or nature whatsoever or any other rights or interests that may be inconsistent with a transaction contemplated in or adverse to Resolve’s interests under this Agreement.
“Losses” means any claims, causes of action, liabilities, losses, damages, settlements, penalties, fines, forfeitures, fees (including expert witness, accounting fees, and reasonable attorney’s fees), costs, and expenses.
“Mark” means any 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 media format, whether registered or unregistered.
“Merchant” means the business identified as the Merchant on the signature page of the Order Form and its successors and permitted designees and assignees.
“Order Form” means the order form between Resolve and the Merchant evidencing the Merchant’s initial subscription for the Services, and any order forms related to the Services entered into by and between Resolve and Merchant.
“Party” or “Parties” means Merchant or Resolve, individually or collectively.
“Payment Account” means the bank account(s) established or arranged by Resolve into which Collections on account of Retained Receivables may be deposited. The Payment Account may be a pooled account into which various collections are deposited.
“Processing Fee”means the amount disclosed to Merchant, on an Order Form or otherwise, that Resolve charges per transaction to process Customer payments on Receivables, which may vary according to payment method.
“Purchase Price” means, with respect to any Receivable purchased by Resolve from the Merchant from time to time hereunder, the face (gross) amount of such Receivable (or, in the case of a partial purchase, the face (gross) amount of the portion purchased), minus the Discount.
“Purchased Receivable” means a Receivable (excluding any Merchant obligations or liabilities) or any portion thereof that Resolve purchases from Merchant by paying the Purchase Price.
“Receivable” means the right to payment owed to Merchant by a Customer arising out of the provision of goods and/or services by the Merchant to such Customer or to its designee and any other related rights, in each case to the extent processed by Merchant’s use of the Services. A Receivable, if a Purchased Receivable, also includes any Related Assets.
“Receivables Purchase Transaction” means a transaction relating to the purchase by Resolve of a Purchased Receivable from Merchant.
“Related Assets” means, with respect to any Receivable, (i) all Collections on account of such Receivable, (ii) an electronic copy of the Customer Contract evidencing such Receivable, (iii) electronic, executed copies of any modifications, amendments, supplements, or addendums to such Customer Contract, and (iv) all books and records related to any of the foregoing.
“Repurchase Price” means, with respect to any Purchased Receivable: (i) where on or before the fifth day following the related Receivables Purchase Transaction a Dispute arose, Merchant provided Resolve timely notice of the Dispute, and Merchant did not breach any of its Receivable-level representations or warranties in Section 6(b) with respect to the Purchased Receivable: the Purchase Price attributable thereto, minus any amounts received by Resolve from a Customer in respect of such Purchased Receivable; or (ii) in all other circumstances: the Purchase Price attributable thereto, minus any amounts received by Resolve from a Customer in respect of such Purchased Receivable, plus the Discount.
“Resolve” means Resolve Corp., a Delaware corporation, and its designees, assignees, and successors. For the avoidance of doubt, the Parties agree that Resolve’s affiliate, Resolve Asset Vehicle 1, LLC, a Delaware limited liability company, may serve as such a designee, assignee, or successor, in Resolve’s sole discretion, with respect to any Receivables Purchase Transaction.
“Resolve IP” means all software, technology or tools used by Resolve to promote, market, sell, generate, or distribute the Services, including Resolve’s Marks and/or copyrighted material.
“Retained Receivable” means a Receivable or any portion thereof that Resolve does not purchase from Merchant, or which has been repurchased by Merchant.
“Services” has the meaning set forth in the recitals.
“Subscription Fee” means the amount disclosed to Merchant, on the Order Form or otherwise, that Resolve charges for Merchant’s use of the Services, according to the service level chosen by Merchant. Except as otherwise expressly specified in the Order Form, the Subscription Fee for any renewal period will be priced at Resolve’s applicable list price in effect at the time of the such renewal, as disclosed to Merchant before such renewal. For clarity, if the chosen service level of a Service is changed, the Subscription Fee will be repriced for the changed service level and may result in a loss of any discount compared to the prior subscription or subscription term.

2. General Terms and Conditions.

Merchant agrees that:

Merchant Eligibility. Before Merchant may access the Services, Resolve may conduct a due diligence evaluation of and approve, in its sole discretion, Merchant for such access. Resolve’s due diligence of Merchant may include evaluating any history of litigation and customer complaints, historic chargeback rates and losses, tax returns, legal status, the financial background of Merchant, the overall financial health of Merchant, the nature of Merchant’s business, and any other information reasonably requested by Resolve. Merchant authorizes Resolve to obtain credit reports and make other inquiries of any bank, lender, and trade credit references identified by Merchant, and other information sources as Resolve deems appropriate. Merchant agrees to provide all information that Resolve may reasonably request while performing such due diligence. Resolve reserves the right at any time, in its sole discretion, to reassess Merchant’s eligibility for the Services.
Merchant’s Trade Credit. Although the Services are designed to help Merchant offer trade credit terms to Merchant’s Customers, Merchant is solely responsible for designing the trade credit terms offered to its Customers, underwriting and making credit decisions regarding its Customers, and providing any disclosures to Customers, each in compliance with applicable law.
United States. Merchant will use the Services only within the United States and any transactions relating to the Services will also occur only within the United States and only with Customers in the United States.
Fees. Merchant will pay the Subscription Fees and Processing Fees when due, as disclosed to Merchant, on the Order Form or otherwise. Merchant agrees that Resolve may change the Subscription Fees and Processing Fees or their due dates at any time upon thirty (30) days’ prior written notice to Merchant, and that Merchant’s continued use of the Services will constitute acceptance of any change.
Customer’s Costs. Merchant will not impose on any Customer any surcharge, fee, or price for goods, services, or transactions related to the Services that are greater than any surcharge, fee, or price imposed on goods, services, or transactions that do not involve the Services.
Merchant Integration. Merchant will take such actions as are reasonably requested by Resolve to integrate or implement the Services with Merchant’s sales and finance processes or to effectuate the implementation of such Services through a mutually acceptable method determined in good faith by the Parties. Merchant will use commercially reasonable efforts to cause such integration or implementation to be operational within sixty (60) days of the Effective Date. Merchant is solely responsible for engaging in testing to ensure the proper functioning of the Services in combination with Merchant’s own systems. Merchant’s use of the Services constitutes Merchant’s acknowledgment that the Services were tested to Merchant’s satisfaction.
Ineligible Goods and Services. Any Merchant offering or provision of the following goods or services is ineligible for the Services: ammunition, firearms, firearm parts or accessories, and weapons or knives regulated under applicable law; narcotics, steroids, controlled substances, and drug paraphernalia; goods or services infringing third-party intellectual property; goods or services provided to a Customer for personal, family, or household purposes; money transmission services; medical services; and any illegal or illicit goods or services.
Protecting Security and Reliability of Services. The Services may contain technological measures designed to help prevent unauthorized or illegal use of the Services, and Resolve may use these measures to help maintain the security and reliability of the Services, verify Merchant’s compliance with the terms of this Agreement, and enforce Resolve’s rights, including any intellectual property rights related to the Services. Merchant agrees that Resolve may restrict or suspend Merchant’s access to Services to protect against misuse, to ensure the security and reliability of the Services, and to protect against any other risks or concerns determined by Resolve in its sole discretion.
Monitoring. Resolve and its representatives may collect and use diagnostic, technical and related information regarding the performance of the Services and Merchant’s use of the Services to monitor and improve the performance of the Services and to enhance the features and functions of the Services. Such information is owned by Resolve and is Resolve’s Confidential Information.
Bank Account. Merchant will establish the Bank Account and maintain it in good standing, and Merchant will not change the Bank Account without Resolve’s prior written consent, which will not be unreasonably withheld. Merchant authorizes Resolve to initiate an ACH account credit to the Bank Account for any amount owed by Resolve to Merchant under this Agreement, and to initiate an ACH account debit from the Bank Account for any amount owed by Merchant to Resolve under this Agreement. Resolve is not responsible for any non-sufficient funds fees, overdraft fees, or other fees that may be incurred if the Bank Account has insufficient funds. The Bank Account may also have an ACH account debit block or filter to reject unauthorized ACH account debits. Merchant must check with its depository institution to determine if the Bank Account has this feature, and, if so, authorize Resolve to process ACH account debits on the Bank Account. If any Resolve ACH transaction is returned due to an ACH account debit block, filter, or any other reason, Merchant must promptly pay any resulting fees or charges, including any that may be assessed on Resolve.
Law. Merchant will comply with applicable law in connection with this Agreement.
Marketing. Merchant will use commercially reasonable efforts to market and promote Customer transactions created or processed by Merchant’s use of the Services. In marketing and promoting such transactions, Merchant may use any sales channel, form of media, media channel, advertisement, marketing script, and press release; provided that any such marketing or promotion will be accurate, will not be unfair, deceptive, or abusive, and will comply with applicable law. Any marketing or promotions that include Resolve’s Mark must be approved in writing in advance by Resolve in its sole discretion, and Merchant will promptly make changes to, or stop using, any previously approved marketing and promotions if and as directed by Resolve.
Exclusivity. Merchant will not integrate, offer, market, assist, facilitate, sell, or promote any person, or the goods or services of any person, who is not party to the Agreement and who offers, markets, assists, facilitates, sells, or promotes trade credit or other payment deferral options that are not credit cards, purchase-money loans, or leasing programs to business customers through any internet, mobile, web browser, point-of-sale devices or applications, or any other electronic means.

3. Receivable Purchase Transactions.

Offers of Receivables. From time to time, Merchant may offer for sale to Resolve any Receivable owed to Merchant by a Customer. Resolve may decide to purchase, but is not obligated to purchase, all or part of any Receivable that Merchant offers for sale to Resolve. No Receivable may be offered or sold by Merchant to any person other than Resolve unless the Receivable first has been offered to and declined by Resolve.
Discounts. Resolve will charge, and Merchant agrees to pay, the Discount with respect to each Purchased Receivable. Payment of the Discount is due immediately upon Resolve’s purchase of such Receivable.
Purchase. The Purchase Price will be paid by ACH account credit to the Bank Account. Upon payment of the Purchase Price to Merchant, all of Merchant’s right, title, and interest in the Purchased Receivable, including any rights to payment, are absolutely and irrevocably sold, transferred, and assigned to Resolve. Resolve does not assume any liabilities or obligations related to any Purchased Receivable; any such liabilities and obligations remain solely with Merchant. All taxes incurred by Merchant or Resolve in such transactions will be borne by Merchant.
Non-Recourse. With respect to Receivables Purchase Transactions, the relationship between the Parties is of seller (i.e., Merchant) and purchaser (i.e., Resolve) of Receivables; the Parties’ relationship is not one of lender and borrower. Resolve’s right to receive payment on account of any Purchased Receivable is generally non-recourse. This means that if the Customer pays Resolve an amount that is less than the amount of the Purchased Receivable—for example, if the Customer has closed in the ordinary course of business—and Merchant has not breached this Agreement and the applicable Purchased Receivable is not subject to a repurchase under Section 3(j), then Merchant will have no payment obligation on such Purchased Receivable.
Servicing of Purchased Receivables. All Purchased Receivables will be serviced, collected, and administered by Resolve, with full right to take any action in doing so, including changing the terms of any Purchased Receivable. Any such action could adversely affect, including reducing the value of, any Receivable or the portions of any Receivable that Resolve does not purchase from Merchant, and Merchant agrees that Resolve will have no liability for any such effects. The Merchant authorizes Resolve to notify each Customer of Resolve’s interest in any Purchased Receivable owed by such Customer. If instructed by Resolve, Merchant will immediately (i) notify Merchant’s Customer in writing that Resolve has purchased the Purchased Receivables and (ii) provide Resolve with any and all requested contact information related to Merchant’s Customer. If Merchant receives any Customer payment on a Purchased Receivable, Merchant must notify Resolve immediately, segregate the amount of such payment for Resolve’s benefit, and immediately remit the amount of such payment to Resolve. If a Purchased Receivable is only a portion of a Receivable (for the avoidance of doubt, the unpurchased portion of such Receivable is a Retained Receivable), then Resolve and Merchant will be entitled to any Customer payments on the Receivable on a pro rata basis, and Resolve will as Merchant’s agent remit Merchant’s portion of such Customer payment to Merchant in accordance with Section 4. Merchant will provide Resolve any requested assistance regarding servicing, collecting, and administering any Purchased Receivable and facilitating payment of any Receivable.
Security Interest and Financing Statements. Merchant acknowledges and agrees that it is intended that the conveyance of all right, title, and interest in and to the Purchased Receivables is and will be an absolute and irrevocable sale, conveyance, and transfer conveying title, free and clear of any Lien, and that such Purchased Receivables will not be part of Merchant’s estate (or bankruptcy estate) in the event of an insolvency proceeding with respect to Merchant (which will include, for the avoidance of doubt, the filing of a decree or order for relief by a court having jurisdiction in respect of Merchant or any substantial part of its property in an involuntary case under Title 11 of the United States Code or any other state or federal applicable insolvency law now or later in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator, or similar official for Merchant or for any substantial part of its property, or ordering the winding-up or liquation of Merchant’s affairs, or the commencement by Merchant of a voluntary case under any applicable insolvency law now or later in effect, or the consent by Merchant to the entry of an order for relief in an involuntary case under any such law, or the consent by Merchant to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator, or similar official for Merchant or for any substantial part of its property, or the making by Merchant of any general assignment for the benefit of creditors, or the failure by Merchant to pay its debts as such debts become due, or the taking of Merchant of any action in furtherance of any of the foregoing). It is not intended that such conveyance be deemed a pledge of the Purchased Receivables to Resolve to secure a debt or other obligation of Merchant. If, however, notwithstanding such intention, the purchase and sale provided for in Section 3 is determined to be a transfer for security, then this Agreement will be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the Uniform Commercial Code, and Merchant grants to Resolve a first priority security interest in, and lien on, all right, title, and interest in and to the Purchased Receivables, now existing or later arising or created, to secure the prompt and complete payment of any loan deemed to have been made, together with all of the other obligations of Merchant under this Agreement. Resolve will have, in addition to the rights and remedies that it may have under this Agreement, all other rights and remedies provided to a secured creditor under the Uniform Commercial Code and other applicable law, which rights and remedies will be cumulative. Merchant authorizes Resolve to file one or more financing statements (including any continuation or amendment) consistent with the applicable Uniform Commercial Code, identifying Merchant as “debtor” and/or “seller,” in any applicable filing office in any applicable jurisdiction that Resolve deems necessary or desirable in order to perfect or give notice of the irrevocable purchase and sale of the Purchased Receivables and/or the security interest granted by Merchant in such Receivables and related assets under this Section 3(f). Any such financing statement may state that such sale is a sale and not an assignment for security and may state that Merchant is prohibited from obtaining any financing that impairs the value of the Purchased Receivables or Resolve’s right to collect or realize same.
No Impairment. Merchant will not take any action or make any omission (including (i) changing the payment terms or due date of a Purchased Receivable, or (ii) placing or allowing placement of a Lien on any Purchased Receivable) that has, individually or in the aggregate, an adverse effect on any Purchased Receivable or on the ability to collect on any Purchased Receivable.
Further Assurances. Merchant will take all actions requested by Resolve, as applicable, to preserve and protect Resolve’s right, title, and interest in and to any Purchased Receivable and to realize Customer payment in full on any such Purchased Receivable.
Disputes. Merchant must notify Resolve of any Dispute within five days of becoming aware of it. Resolving Disputes is solely the responsibility of Merchant. Merchant will work directly with Customer in good faith to resolve the Dispute. Merchant will provide Resolve periodic updates, as requested by Resolve, regarding the status of the Dispute. A Dispute is resolved when Customer pays the full Receivable balance (or unpaid remainder of the Receivable) to Merchant. If Merchant is unable to resolve a Dispute related to a Purchased Receivable within ten days, Merchant must repurchase the Purchased Receivable and pay to Resolve the Repurchase Price immediately upon demand. Resolve is authorized to initiate ACH account debits from the Bank Account in the amount of the Repurchase Price.
Repurchases. If Merchant breaches any of its Receivable-level representations or warranties in Section 6(b) with respect to any Purchased Receivable, Merchant must give Resolve notice of any such breach immediately upon becoming aware of it. Upon discovering any such breach (through Merchant or otherwise), Resolve may require Merchant, and Merchant hereby agrees, to repurchase the related Purchase Receivable from Resolve by paying the Repurchase Price immediately upon demand. Merchant hereby authorizes Resolve to initiate ACH account debits from the Bank Account in the amount of the Repurchase Price. Merchant further authorizes Resolve to apply any Collections received by Resolve on account of Retained Receivables to the payment of any Repurchase Price or other amount due and unpaid hereunder.

4. Administration of Retained Receivables.

Administration Services. Resolve will provide to Merchant forms of electronic account statements in the Merchant’s name and using the Merchant’s Marks and send such statements to Customers on Merchant’s behalf. The statements will provide that check, ACH, and wire payments are to be made to the Payment Account. Resolve may indicate on the statements that they are “powered by Resolve” or similar designations.
Payment Account. From time to time, Resolve as Merchant’s Agent will cause Collections deposited in the Payment Account on account of Retained Receivables to be remitted to a bank account designated by Merchant, net of any amounts due to Resolve under this Agreement. As consideration for Resolve’s administration of the Retained Receivables, Merchant will pay Resolve the Processing Fees by withdrawal from the Payment Account, by netting from remittances as provided in this Section 4(b), or by such other manner specified by Resolve from time to time. Resolve may also withdraw and retain any interest earned on funds in the Payment Account.

5. License Grants and Intellectual Property.

Service License. During the subscription term Merchant subscribes for the Services, 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 Services and integrate the APIs in order to provide and to enable Customers to access, use, perform, and display (publicly or otherwise) the Services.
Trademark License. During the term of this Agreement, 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 Marks solely in connection with and solely to the extent reasonably necessary for the purposes of this Agreement; and Merchant also grants to Resolve such a license and rights with respect to Merchant’s Marks in connection with Resolve’s press releases, customer lists, investor pitches, case studies, web pages, and other advertising, promotional, or marketing materials. 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 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 Services. Merchant agrees and acknowledges that Resolve is the exclusive owner of and retains all right, title, and interest in any 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 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 Services or Resolve IP; (v) alter or remove any warranties, disclaimers, and license agreements shipped with the Services; or (vi) use the Services and Resolve IP in any manner or for any purpose other than for which the Services and Resolve IP have been incorporated or for which the 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 Services any suggestion, correction or other feedback provided by Merchant relating to the Services.
Restrictions on Use of Services. Merchant will not: (i) offer for sale or lease, sell, resell, lease or in any way transfer the Services; (ii) attempt to create a substitute or similar service through the use of, or access to, the Services; (iii) and will ensure that Customers and third parties do not access or use the 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 7, shall not be shared with any third party without Resolve’s prior written consent). Merchant will immediately notify Resolve if Merchant becomes aware of any material breach relating to the Services.

6. Representations, Warranties, and Covenants.

General Representations and Warranties. Merchant represents, warrants, and covenants on an continuing basis: (i) Merchant is and will be duly organized, validly existing, and in good standing under the laws of its organizational jurisdiction, duly qualified to do business in each jurisdiction where it conducts its business, and have and will have the full power and authority to carry on its business in the manner conducted as of the date of this Agreement; (ii) Merchant has and will have full power and authority to enter into, deliver, and perform all its obligations under this Agreement, and it has and will have been duly authorized to do so by any necessary organizational action; (iii) there are and will be no laws, organizational instruments, contracts, or any other circumstances that would conflict with or prevent Merchant from entering into or performing its obligations under this Agreement; (iv) the individual executing this Agreement on Merchant’s behalf is at least 18 years of age and has the authority and legal capacity necessary to bind Merchant; (v) following execution and delivery, this Agreement constitutes the valid and binding obligation of Merchant, enforceable against Merchant in accordance with its terms; (vi) Merchant has and will maintain insurance in such amounts and against such risks as are reasonably necessary to protect its business and will provide proof of such insurance to Resolve upon reasonable request; (vii) Merchant is and will be in possession of and compliance with all licenses, permits, approvals, consents, and other authorizations required by any governmental body to conduct its business; (viii) Merchant is and will be in compliance with all laws, regulations, ordinances, orders, and other requirements of any governmental body; (ix) Merchant is not and will not be a target of any economic or trade sanctions issued or administered by any governmental body; (x) all tax returns and tax reports, and all taxes due and payable or required to be filed by Merchant have been or will be filed and paid, on a timely basis (including any extensions); (xi) Merchant has no and will have no material liabilities and no material contingent liabilities, except those which Merchant disclosed to Resolve in writing before the Effective Date and except current liabilities incurred in the ordinary course of business; (xii) Merchant is not and will not be subject to any Lien, except those which Merchant disclosed to Resolve in writing before the Effective Date and except those incurred in the ordinary course of business; (xiii) Merchant will promptly notify Resolve of any significant change or other development that has or may have a material adverse effect on or a significant change in Merchant’s business, and Merchant agrees to provide to Resolve, upon request, any information related to Merchant’s business or the transactions contemplated by this Agreement; (xiv) there is and will be no action, suit, claim, inquiry, investigation, or legal, administrative, or arbitration proceeding pending or currently threatened, whether at law, in equity, or before any governmental authority, against Merchant; (xv) Merchant has not declared bankruptcy within the past seven years preceding the Effective Date, has not consulted with a bankruptcy attorney within the past six months preceding the Effective Date, and is not and will not contemplate or anticipate the filing of a bankruptcy or other insolvency proceeding, or closing or materially modifying Merchant’s business; (xvi) Merchant is and will be solvent and capable of fulfilling its obligations under this Agreement, and Merchant has not been having and will not have any difficulty paying amounts due to others in full and when due; and (xvii) and any information, materials, data, content, or documents Merchant directly or indirectly provides to Resolve are true, correct, and complete and nothing material has been omitted.
Representations and Warranties Concerning Purchased Receivables. For each Purchased Receivable, Merchant makes the following representations and warranties as of the time of purchase by Resolve: (i) Merchant holds good and marketable legal title to the Purchased Receivable, free and clear of any Liens and restrictions on transfer; (ii) Merchant has not sold, pledged, assigned, or encumbered the Purchased Receivable; (iii) no person has any rights, interest, or claims in or to the Purchased Receivable; (iv) the Purchased Receivable is not subject to any reduction in value resulting from Merchant’s decisions, actions, or omissions, and is presently and unconditionally owing; (v) the Purchased Receivable is not past due and represents amounts owed by the Customer arising from Merchant’s actual and timely performance or provision of goods or services to the Customer in the ordinary course of Merchant’s business; (vi) the Purchased Receivable is not subject to any Dispute; (vii) no agreement has been made under which the Customer may claim any deduction or discount against the Purchased Receivable; (viii) the Customer is liable for the full amount of the Purchased Receivable and has not objected to its payment or the quality or quantity of the goods or services performed or provided; (ix) the Purchased Receivable has not been modified, dismissed, settled, or paid; (x) there has been no error, misrepresentation, negligence, fraud, omission, or violation of law on the part of any person with respect to the Purchased Receivable or its underlying goods or services; and (xi) Merchant has no knowledge that the Customer has filed or intends to file for bankruptcy or receivership, or has been having any difficulty paying or intends not to pay amounts due to any person in full and when due.

7. Confidential Information.

Neither Party shall use the other Party’s Confidential Information for any purpose whatsoever outside of the scope of this Agreement, nor shall either Party disclose the other Party’s 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 7 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 immediate notice of such circumstances and will limit such disclosure to only what is specifically required.

8. Consent to Electronic Communication.

By signing this Agreement, including if by signing electronically, Merchant irrevocably consents and agrees that Resolve may provide all information and disclosures required by law to Merchant electronically; and Merchant’s electronic signature on this Agreement and related documents has the same effect as if Merchant signed them in ink. This consent applies to acceptance of this Agreement, to all future communications with Merchant, and to other communications, notices, and disclosures that Resolve provides to Merchant electronically. All communications provided electronically will be deemed to be “in writing.” Resolve reserves the right to cancel electronic disclosure services and to change such services or send disclosures in paper form at any time. Resolve is responsible for sending notice of the disclosures to you electronically, but is not responsible for any delay or failure in Merchant’s receipt or review.

9. Consent to Telephonic Communications.

For informational, servicing, fraud, or collection related communications, Merchant agrees that Resolve may use the phone numbers that Merchant provides to Resolve to contact Merchant’s phone, cellular phone, or wireless device with text messages, artificial or prerecorded voice calls, and calls made by an automatic telephone dialing system. Merchant represents and warrants that any phone number that Merchant provides to Resolve is a business-purpose phone number that belongs to Merchant or that Merchant is authorized to provide to Resolve. Call and text frequency may vary and may be recurring. This consent applies even if Merchant is charged for the call or text under Merchant’s plan. Merchant is responsible for any charges that may be billed to Merchant by Merchant’s communications carrier when Resolve contacts Merchant. Message and data rates may vary. Resolve and any carrier are not liable for delayed or undelivered messages. To ensure that Merchant receives accurate and courteous customer service, Merchant’s calls with Resolve may be monitored or recorded by us or our agents, and Merchant agrees to any such monitoring and recording.

10. Notices to Resolve.

All notices to Resolve concerning this Agreement must be sent to us at: Resolve Corp., 2261 Market Street #4229, San Francisco, CA 94114. Notice by Merchant to Resolve is deemed to be given when received by Resolve.

11. Notices to Merchant.

All notices to Merchant concerning this Agreement will be sent to Merchant’s last mailing address or email address that Resolve has on file for Merchant. Notice by Resolve to Merchant is deemed to be given when sent. Merchant agrees to notify Resolve, as set forth in Section 10, immediately regarding any change of Merchant’s address or email address. Until Resolve is notified that Merchant’s address has changed, Resolve will continue to send notices to the last address or email address for Merchant that Resolve maintained on file.

12. WARRANTY DISCLAIMER.

THE SERVICES AND RECEIVABLES PURCHASE TRANSACTIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, INCLUDING THOSE EXPRESS, IMPLIED, OR STATUTORY, AND, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, RESOLVE DISCLAIMS ALL WARRANTIES OF ANY KIND REGARDING THE SERVICES AND RECEIVABLES PURCHASE TRANSACTIONS INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NONINFRINGEMENT, TITLE, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.

13. Set Off.

Resolve may set off any Subscription Fees, Processing Fees, Discounts, Repurchase Prices, costs, expenses, indemnification amounts, and any other amounts Merchant owes Resolve, as applicable, against any Purchase Prices, remittances, or other amounts owed by Resolve to Merchant.

14. Indemnification; Remedies.

Merchant agrees to 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 Losses arising out of or relating to any of the following: (i) any misrepresentation, breach or alleged breach of, failure, or default by Merchant in connection with any of representation, warranty, covenant, or other provision of this Agreement (or any agreement incorporated by reference herein); (ii) any Dispute or other claim arising out of or relating to the goods or services provided by Merchant, including any claims for false advertising, unfair business practices, product defects, and personal injury, death, and property damage; (iii) any claim arising from Customers’ use of the Services; (iv) Resolve’s servicing of the Retained Receivables; or (v) Merchant’s gross negligence or willful misconduct. In addition to the rights and remedies Resolve has under this Agreement, Resolve will also have all other rights and remedies provided under applicable law and equity, which rights and remedies will be cumulative.
Resolve agrees to indemnify and hold Merchant and its affiliated and related entities, and each of their respective officers, directors, agents, and employees, harmless from and against any Losses arising out of or relating to any of the following: (i) any misrepresentation, breach or alleged breach of, failure, or default by Resolve in connection with any of representation, warranty, covenant, or other provision of this Agreement (or any agreement incorporated by reference herein); or (ii) Resolve’s gross negligence or willful misconduct. In addition to the rights and remedies Merchant has under this Agreement, Merchant will also have all other rights and remedies provided under applicable law and equity, which rights and remedies will be cumulative.

15. Limitation of Liability.

IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY 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, INCLUDING LOSS OF PROFIT, USE, OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION, UNAUTHORIZED ACCESS TO THE SERVICES OR INFORMATION, OR UNAUTHORIZED INTERCEPTION OF ANY INFORMATION, 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 AGGREGATE AMOUNT OF SUBSCRIPTION 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, OR $10,000, WHICHEVER IS LESS. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.

16. Dispute Resolution; Governing Law.

If any dispute arises under this Agreement, the 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.
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware 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 New Castle County, Delaware before one arbitrator. The arbitration shall be administered by Judicial Arbitration and Mediation 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 the 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.

17. Independent Contractors.

Except for the agency expressly provided in Sections 3(e) and 4(a), nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or agency relationship between the Parties and neither Party has the authority, without the other Party’s written approval, to bind or commit the other Party in any capacity.

18. 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, pandemic or epidemic, earthquake, storm, flood or other weather, unavailability of necessary utilities, telecommunications failures, or shortage of raw materials, strike, lockout, labor problems, 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 Delaware courts as an event of force majeure.

19. Assignment.

Merchant may not sell, assign, or transfer this Agreement or any rights or obligations under it without Resolve’s advance written consent, and any sale, assignment, or transfer or attempt thereof without Resolve’s prior written consent is and will be null and void. Resolve may sell, assign, or transfer to any person, all or any portion of a Purchased Receivable, this Agreement, or any of Resolve’s rights or obligations under this Agreement without prior notice to Merchant. The provisions of this Agreement will inure to the benefit of, and be binding upon, the Parties and their respective successors and permitted assigns.

20. Termination; Survival.

Subscription Term of the Services. The initial subscription term for the Services is set forth in the applicable Order Form. At the end of the initial subscription term, except as otherwise expressly specified in the Order Form, the subscription term of each Service will renew automatically for additional successive 12-month subscription terms, unless at least 30 days prior to the end of the then-current subscription term either Party notifies the other Party in writing that it will not renew the subscription term for the Services. Upon expiration or termination of the subscription term of the Services, Merchant will immediately cease use of the Services, and all rights related to the use of the Services granted to Merchant under this Agreement will automatically terminate, regardless of whether this Agreement is also terminated. For clarity, the expiration or termination of the subscription term of the Services will not in and of itself constitute a termination of the Agreement.
Termination of Agreement. A Party may terminate this Agreement for cause (i) upon 30 days written notice to the other Party of a breach if such breach remains uncured at the expiration of the 30-day period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors which is not dismissed after 30 days of the related filing. Resolve may also terminate this Agreement without cause at any time upon notice to Merchant. Merchant may also terminate this Agreement without cause at any time after the subscription term of the Services has been terminated or expired, as applicable, upon notice to Reoslve. Subject to the foregoing conditions, any permitted notice of termination of this Agreement by Merchant will become effective in one (1) business day or such longer period commercially reasonable under the circumstances, provided that no such termination by Merchant will be effective until such time as all Purchased Receivables have been fully received by Resolve.
Effect of Expiration or Termination; Survival. Regardless of any termination or expiration of the subscription term of the Services or any termination of this Agreement, Merchant will continue to be obligated to pay all amounts owing by it under, and to otherwise perform the terms of, this Agreement, and all of Resolve’s rights will continue in full force and effect until all of Merchant’s obligations are fully satisfied, including payment of Subscription Fees, Processing Fees, Discounts, and Repurchase Prices, which Resolve will continue to impose until the date full payment is received. However, if this Agreement is terminated in accordance with Section 20(b) by Merchant for cause or by Resolve without cause, Resolve will refund Merchant any prepaid Subscription Fees covering the remainder of the subscription term for the Services after the effective date of termination. Sections 2(h), 2(i), 3 through 3(j), 4(b), 5, 6(b), 7 through 9, 12 through 19, and 21 through 24 will survive any termination or expiration of the subscription term of the Services and any termination of this Agreement.

21. Amendment.

Resolve may, at any time and subject to applicable law, change any term or add any new term in this Agreement, including those related to Subscription Fees, Processing Fees, Discounts, or other charges, or other terms. When required by applicable law, Resolve will deliver a notice of any change(s) or addition(s) to Merchant. No change to any term or new term in this Agreement will affect any Merchant obligation under this Agreement to pay, in full, all amounts owing by it under, or otherwise perform the terms of, this Agreement. Merchant’s continued use of the Services will constitute acceptance of any amendment.

22. Non-Waiver.

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.

23. Severability.

If any provision of this Agreement is determined to be void or unenforceable under applicable law, rule, or regulation, all other provisions of this Agreement shall be valid and enforceable.

24. Entire Agreement.

This Agreement and the Order Form constitute the entire agreement between Merchant and Resolve relating to the subject matter hereof and supersede any other prior written or oral agreements between Merchant and Resolve relating to the same. To the extent of any conflict between this Agreement and the Order Form, the terms of the Order Form shall control. No terms or conditions contained on any purchase order or other business form submitted by Merchant to Resolve will be binding on Resolve or constitute any part of this Agreement or of the Order Form. This Agreement may not be amended except in accordance with the provisions of this Agreement.