Exhibit 10.15
FORM OF MERCHANT AGREEMENT
THIS AGREEMENT, made the _____ day of _________, 200__ by and between
RETURN ASSURED INCORPORATED., a Nevada corporation with its principal place of
business at 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000 (the
"Company"); and
[Name and Address]
(the "Merchant").
WHEREAS, the Company is engaged in the business of providing, on a fee
basis to be paid by the merchant, a refund guarantee program to electronic
retail purchasers of goods from subscribing merchants in accordance with each
merchant's refund policy (the "Asure Program"); and
WHEREAS, the Merchant desires to subscribe to the Asure Program in
order to offer its retail customers the refund guarantee provided for in the
Asure Program, all in accordance with the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions contained herein, and for such other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Subscription by Merchant to the Asure Program: Subject to the
terms and conditions herein, Merchant hereby subscribes to the
Asure Program, and the Company hereby agrees to provide the
Asure Program to Merchant for the benefit of its Customers who
purchase Qualifying Products (as those terms are hereinafter
defined) directly from the Merchant.
2. The Merchant's Refund, Exchange and Return Policy: The Asure
Program shall guarantee the Merchant's performance of its
obligations under the Merchant's Refund, Exchange and Return
Policy (the "Merchant's Policy") to and for the exclusive
benefit of the Customer subject to the terms and conditions
hereof. As a condition to any of the Company's obligations
under this Agreement, and upon execution of this Agreement,
the Merchant shall deliver its written Merchant Policy to the
Company for review and filing. In the event the Merchant
intends to amend is Merchant Policy at any time during the
Term hereof, it shall, within ten (10) business days prior to
the effectiveness of such amendment, notify the Company of
such
amendment, specifying the details of all such amendments. The
Company reserves the right to terminate this Agreement on one
(1) day notice to Merchant if, in its sole and absolute
discretion, the Merchant's Policy as originally delivered or
as amended is unacceptable.
3. Nature, Scope and Applicability of the Asure Program: The
Company shall, subject to the terms and conditions hereof,
provide a guarantee of the Merchant's refund policy to
Merchant's Customers who purchase Qualifying Products directly
from Merchant during the Term of this Agreement. A Customer is
defined as an individual or corporate customer who purchases
Qualifying Products at retail. "Qualifying Products" are goods
sold or facilitated directly by Merchant to a Customer which
(a) have an invoice price (net of taxes, freight, shipping,
handling, C.O.D. or other similar charges) of at least US$5.00
and up to US$2,000 per item(1); (b) is NOT sold on an "as is",
"final sale" or other basis where the customer has no right to
refund, exchange, or return; and (c) is NOT, in the sole
discretion of the Company, an illegal, contraband, or
obscene/offensive item. Services shall NOT be covered by the
Asure Program.
4. Procedure for Implementing the Asure Program: In order to
implement and maintain the Asure Program during the Term
hereof, the parties agree as follows:
A. Merchant will prominently display the Asure
Xxxx (defined as the Company's trademarked
logo, as displayed on Exhibit A hereto,
subject to change by the Company from time
to time) in all of its electronic media
(including but not limited to websites and
long-form television advertisements) in a
manner satisfactory to the Company;
B. Subject to sub-paragraph (c) below, Merchant
shall prominently provide a hypertext link
from its web site to the Company's web site
in a manner acceptable to the Company which
permits users of Merchant's web site to hot
link to the Company's web site (the "Link").
It is Merchant's responsibility and
financial burden to establish and maintain
this hypertext link, including all software,
hardware, and
--------
(1) Goods with an invoice price of less than $5 or more than $2,000 are
NOT Qualifying Products and therefore NOT covered by the Asure Program.
-2-
approvals;
C. Merchant's web site must be configured so
that:
i. the user is required to
hot link to the Company's
web site PRIOR to the sale
from the Merchant to the
Customer of the Qualifying
Product being completed;
ii. the Merchant's Policy and
a privacy policy in
accordance with its
obligations under this
Agreement is prominently
displayed prior to
completing any sale and
the user is required to
acknowledge, by way of a
mouse "click", that it has
read the Merchant's
Policy;
iii. the user receives
conspicuous notice that
the Asure Program does NOT
apply to sales which are
not effected via the
Merchant's online website;
and
iv. The Company can monitor
Merchant's web site for
the purpose of tracking
the Merchant Information
(as defined below) through
direct Internet access.
This shall be accomplished
by installing software
provided to Merchant by
the Company, but
maintained and installed
by Merchant.
5. COVENANTS AND ACKNOWLEDGMENTS OF THE MERCHANT.
i. Merchant shall not state or imply that the
Company endorses, warrants, sponsors,
guarantees or otherwise any Qualifying
Product.
ii. Merchant shall not use any promotional or
advertising material for the Asure Program
without the Company's prior written
approval.
iii. Except as otherwise provided herein, the
Company shall not be obligated to provide
any technical, creative, design or
production services or other forms of
support in implementing or administering the
Asure Program.
-3-
iv. The Company shall have the right, from time
to time, to review and test Merchant's web
site to determine whether it is fully
compatible and compliant with the Asure
Program and this Agreement. Should the
Company, in its sole discretion, determine
that the Merchant must modify any aspect of
its web site in order to comply with the
Asure Program or this Agreement, Merchant
shall immediately comply with such
reasonable directions of the Company.
v. Merchant shall promptly, diligently and
fully perform all if its obligations to
Customers pursuant to the Merchant Policy.
6. CONSIDERATION; PRICING; PAYMENT
A. In consideration for the Company's provision of the
Asure Program, Merchant shall pay the Company a fee
equal to US$0.55 per sale of all Qualified Products
during the Term hereof, or during any extension or
renewal of same (the "Fee").
B. The Fee shall be payable on all online sales by
Merchant, whether they be on Merchant's web site, or
a Shopping Hub, which is defined as a hub or online
"mall" that subscribes to the Asure Program.
C. The Company will send Merchant an invoice each week
for all Fees which are due from sales during the
preceding week. Such invoices shall be sent either
electronically to Merchant's designated address, or
in printed form. Merchant shall pay such invoices
within fourteen (14) days after transmission by the
Company and payments may be made via bank draft or
electronic wire transfer to the Company's wire
coordinates which will be supplied upon written
request by Merchant for same. Any overdue Fees shall
accrue interest at the higher of the highest
allowable rate under applicable law, or 18% per
annum.
D. In order for the Company to receive the information
and data necessary for proper invoicing as set forth
above, the Merchant shall cooperate with and take all
reasonable steps to establish an electronic payment
and data exchange system with the Company so that the
Company can electronically monitor all sales of
Qualified Products
-4-
to Customers. The failure of Merchant to comply with
this paragraph shall constitute a material default
hereunder.
E. The Company reserves the right to change the Fees
from time to time on at least ten (10) business day
notice to Merchant.
F. Merchant shall be solely responsible for all sales,
use, transaction, ad valorem, withholding and other
taxes, charges, assessments or levies.
7. PROCEDURE IN THE EVENT OF CUSTOMER CLAIMS. In the event of the
assertion of a Customer request for a refund/exchange pursuant
to the Asure Program:
A. Upon receipt by Merchant of any request for a
refund, Merchant shall issue to the Customer
a Return Authorization Number ("RAN") which
shall be provided to the Company within three
(3) business days of issuance together with
all order information, shipment information
and other relevant information and
documentation. The documents must indicate
clearly that the Customer purchase was on
online purchase. Furthermore, the Merchant
shall instruct the Customer in writing to
affix the RAN to the shipping label the
Customer uses to return the Qualified Product
forming the subject of the refund/return
request;
B. Merchant shall then accept and duly and
timely process all returns, exchanges or
refund requests by Customers in accordance
with the Merchant's Return Policy.
C. Merchant acknowledges that the Company may
pursue complaints or claims against Merchant
on behalf of a Customer or in its own name,
regarding Merchant's compliance of the
Merchant's Policy.
D. Merchant hereby authorizes the Company, in
its own name and as agent of Merchant, to
adjust, settle, or compromise any claim or
demand made on the Company by a Customer
under the Asure Program and any such
adjustment, settlement or compromise shall be
binding upon Merchant. Merchant hereby
designates the Company to be its
attorney-in-fact in order to execute and
deliver any
-5-
document or thing necessary to effectuate the
terms of this Section or of this Agreement.
This power of attorney being coupled with an
interest is irrevocable during the Term
hereof.
E. The Company may, in its sole discretion,
dispose of all returned Qualified Products in
one of the following manners: (i) return the
Qualified Products to Merchant at Merchant's
expense; (ii) auction or sell the returned
Qualified Products as the Company deems fit
with the proceeds of such auction/sale being
applied first toward the expenses of such
auction/sale, and then toward satisfying
Merchant's obligations under Paragraph 7
below; or (iii) donate the returned Qualified
Products to charity without compensation.
8. MERCHANT'S INDEMNITY OF THE COMPANY FOR CLAIMS. Merchant
hereby agrees to indemnify and reimburse the Company upon
demand for any and all loss, liability, damage or expense
(including but not limited to reasonable attorney's fees and
costs, amounts paid as refunds to Customers pursuant to the
Asure Program, shipping and handling charges) arising out of
the Company's provision of the Asure Program to honor the
Merchant's Policy. In addition, Merchant agrees to pay the
Company an administrative fee of ten percent (10%) over and
above any amounts owed to the Company pursuant to the
preceding sentence.
9. MERCHANT INFORMATION; AUDIT. Merchant shall keep accurate
records and accounts in accordance with generally accepted
accounting principles for a period of at least three (3) years
after termination or expiration of this Agreement. Merchant
shall provide the Company with a statement certified to be
true, complete and accurate by an office of Merchant,
information regarding its operations and financial condition
and sales, return and customer information regarding its
Online Sales, including without limitation the following
information to be provided at the following intervals (the
"Merchant Information"):
A. order number/shipping label bar code - upon dispatch;
B. Online Sales volumes and returns/exchanges related to
Online Sales - on a weekly basis;
C. copy (in electronic format) of each Online Sales
order
-6-
containing order date, name and address of Retail
Customer, item(s) description, item(s) quantity,
item(s) price, total order dollar amount and date on
which order was fulfilled and the delivery carrier -
within one day of processing;
D. all correspondence to and from Online Purchasers
regarding returns or exchanges of items purchased in
an Online Sales transaction - upon receipt and
dispatch;
E. information requested to monitor compliance with
Article 4 (Quality Standards) - upon request
F. records of all Online Sales for the immediately
preceding three month period - quarterly;
G. exact copies of all federal, provincial and state
income and sales tax returns for any period
requested;
H. any other information requested.
Merchant further agrees that the Company may, upon reasonable
notice, inspect the books and records of Merchant to verify compliance with the
terms of this Agreement and payment of the Fees. In the event any audit reveals
an underpayment of Fees, Merchant shall within ten (10) days, remit to the
Company the amount of such delinquency, together with interest on such amount at
18% per annum from the date the Fees were originally due and the costs of such
audit of the underpayment of Fees exceeds $300.
10. REPRESENTATIONS AND WARRANTIES. Each party hereby represents
and warrants to the other that:
1. Each has the full corporate power, authority
and right to enter into and perform all of
the terms of this Agreement;
2. The execution and performance of this
Agreement does not and will not violate any
third parties' contractual, intellectual
property or other proprietary rights, or any
judgment, order, decree or law.
3. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER
PARTY MAKES ANY REPRESENTATION, WARRANTY,
CONDITION OR GUARANTEE AS TO THE
MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, MARKETABILITY, SAFETY,
-7-
RELIABILITY, DESIGN OR OTHER REPRESENTATION,
WARRANTY OR GUARANTEE, IMPLIED OR EXPRESS
WHATSOEVER.
11. INTELLECTUAL PROPERTY.
1. Merchant agrees and acknowledges that the
Company is the sole and exclusive owner of
the Asure Program (and the software delivered
pursuant to Paragraph 4), the Asure Xxxx and
all copyrights, trademarks, service marks,
trade secrets and patents used in connection
therewith. In this regard, Merchants agrees
not to take any action to contest or
challenge the Company's ownership of same, or
its registration of same; nor will Merchant
register or seek to register the Asure Xxxx
or any xxxx which is substantially similar in
any jurisdiction in the World. Any and all
use of the Asure Xxxx by Merchant shall inure
to the sole benefit of the Company.
2. The Company hereby grants Merchant a
non-exclusive license to use on its web site
the Asure Xxxx for the limited purpose and
Term of this Agreement. Merchant shall not
sublicense the Asure Xxxx or use it in any
way not contemplated by this Agreement. Any
rights not expressly given to Merchant
hereunder are reserved. The Company reserves
the absolute right to dictate and approve the
nature and character in which the Asure Xxxx
is being used under this license.
3. All use of the Asure Xxxx by Merchant shall
be accompanied by trademark notices in form
and substance satisfactory to the Company as
follows: "(R)A Sure Ecommerce, Inc."
12. SECURITY; ACCURACY OF DATA; SYSTEMS
1. Merchant shall not employ any device, software or
routine that will result in interference with the
operation of the Asure Web Site or take any action
that imposes unreasonable or disproportionately large
load on the Company's system infrastructure. In the
event that the Company reasonably believes that
software, technology or other technical components of
Merchant's Web Site will materially affect the
Company or its operations, Merchant
-8-
will work in good faith with the Company to remedy
such problem at its own expense.
2. Merchant is solely responsible for the content of the
Merchant Information. Merchant acknowledges that the
Company shall have no responsibility or liability
regarding the contents or accuracy of Merchant
Information or any other data provided to it by
Merchant. The Company agrees not to manipulate or
alter the Merchant Information and to provide
reasonable safeguards in accordance with current
Internet online industry standards for the protection
of Merchant Information while it remains under the
control of the Company.
3. The parties shall take reasonable precautions,
consistent with current standards in the Internet
online industry, to maintain secure Web Sites and
prevent the interruption or corruption of data
transmitted between them or the introduction of
viruses, worms, timebombs, cancelbots, or similar
programming routines designed to corrupt, interfere
with or intercept any system or data of the other
party. Notwithstanding Article 13, the Company does
not represent, warrant, covenant or guarantee that
the transfer of data between the Company and Merchant
cannot be received, intercepted or corrupted by other
persons or machines.
4. Merchant shall implement and employ any widely
available data encryption tools requested by the
Company for use in the transmission of sensitive data
over open networks. Such implementation and use shall
be at Merchant's sole expense and in accordance with
instructions from the Company.
5. Merchant will facilitate periodic reviews of
Merchant's Web Site by the Company or its designated
contractor to evaluate the security risks of such
site. Merchant will promptly remedy any security
risks or breaches of security as may be identified by
the Company.
13. CONFIDENTIALITY; NON-COMPETITION
1. For purposes of this Agreement, the term
"Confidential Information" means any material or
information that is proprietary to Merchant or the
Company or all information of either party designated
as confidential, including but not limited to Asure
Information, Merchant Information,
-9-
business plans, pricing, sales, marketing, actuarial
and other business data, payment terms, manuals,
computer software of any type or form together with
related documentation and user manuals, intellectual
property or information related to intellectual
property, information that is marked confidential,
secret or proprietary or that has been orally
disclosed and reduced to writing and marked as
confidential, and any portions of, or materials
derived from, Confidential Information. "Confidential
Information" does not include information (i) which
is in the public domain prior to disclosure to the
receiving party; (ii) which the receiving party can
demonstrate was in its possession at the time of
receipt from the disclosing party; or (iii) lawfully
obtained without confidentiality restrictions from a
third party who has not breached any confidentiality
obligations by making such disclosure.
2. Except as specifically permitted in this Agreement or
as required by applicable law, neither party will:
(i) disclose any Confidential Information received
(directly or indirectly) from the other party to any
third party other than its employees, officers,
directors, agents, advisors and subcontractors and
delivery agents who need to know such information for
the purposes of executing its obligations and
enforcing its rights under this Agreement; or (ii)
use the Confidential Information received from the
other party for any purpose other than to execute its
obligations and enforce its rights under this
Agreement.
3. Each party acknowledges that the Confidential
Information of the other represents the product of
valuable effort and work, and the breach of any
condition of this Article will result in irreparable
harm not compensable by damages. Notwithstanding
anything herein to the contrary, such breach, or
circumstances leading the party who owns or controls
Confidential Information ascribed to that party to
reasonably anticipate a breach, will entitle the
party who owns or controls such Confidential
Information to injunctive relief without need for
posting a bond or undertaking to pay damages.
4. During the term of this Agreement and for a period of
two (2) years thereafter, Merchant shall not,
directly or indirectly, either individually or
through a corporation or other entity, as principal,
agent, shareholder, employee or in any other manner
whatsoever, carry on or be engaged in or be concerned
with or interested in or advise, lend money to,
-10-
guarantee the debts or obligations of or permit its
name to be used or employed by an individual, firm,
association, syndicate, corporation or other business
enterprise engaged in or concerned with or interested
in any business which is similar to or competitive
with the Program and carries on business in any
jurisdiction in which the Program services are
offered to merchants as of the date of termination or
expiration of this Agreement.
14. INSURANCE
1. Merchant shall maintain insurance, at its own cost
with a reputable insurer, either by way of separate
insurance policies or by endorsements to its existing
policies, for the following types of coverage and
providing for the following amounts of coverage: (i)
comprehensive general liability with a minimum
coverage limit of US$2,000,000; (ii) all risks
property insurance with coverage for 100% of
Merchant's insurable assets; (iii) cyberliability
coverage with a minimum coverage of US$1,000,000;
(iv) business interruption insurance with a minimum
six month indemnity period;
2. The terms of Merchant's insurance policies shall be
satisfactory to the Company, and may not be amended,
canceled or allowed to lapse without 30 days prior
written consent of the Company.
3. Merchant's comprehensive liability and cyberliability
policies provided hereunder shall name the Company as
an additional insured with respect to claims arising
out of Merchant's operations.
4. Merchant hereby waives any rights of subrogation it
has or may have against the Company with respect to
any insurance policy or any events or liabilities
covered by any insurance policy.
5. Merchant shall provide to the Company, within 10 days
after the inception of this contact, a Certificate of
Insurance providing evidence that all the Insurance
terms, conditions and coverages set forth above are
in full force and effect.
15. TERM AND TERMINATION
1. Subject to the termination rights set forth herein,
this Agreement shall continue in full force and
effect for an initial term of two (2) years, and
shall be automatically renewed
-11-
for successive terms of one year each unless either
party, within 45 days prior to the end of the
then-current term, notifies the other party in
writing that it does not wish to renew this
Agreement. If such notice is given, this Agreement
shall expire at the end of the then-current term.
2. This Agreement may be terminated in the following
manner and under the following conditions by the
Company:
1. At any time on one (1) day notice
in the event the Company
determines, in its sole discretion,
that the Merchant's acts or
omissions in the conduct of its
business or participation in the
Asure Program are detrimental to
the business or reputation or the
Company, could damage or upset the
Company's web site or computer
infrastructure, if Merchant is
wilfully or recklessly not
complying with the Merchant's
Policy, if Merchant becomes
insolvent or bankrupt, if there has
occurred a material adverse change
to Merchant's financial condition,
business operations or
return/exchange rate; or if the
Company is unable to obtain or
continue, surety or indemnity
services from a reputable, solvent
insurance company or similar
institution for its obligations
under this Agreement and the
Program in general.
C. Immediately upon termination or expiration of this Agreement,
Merchant shall cease use of the Asure Xxxx and Asure Program
in any manner whatsoever and will forthwith remove from
Merchant's Web Site and promotional and other materials all
references to the Program and all banners, signs, labels and
other indicia of its rights to use the Marks or offer the
Asure Program and will not display, use or adopt any other
word, xxxx or name confusingly similar thereto. The Company
may maintain copies of Merchant Information and other
Confidential Information required for archival and record
keeping purposes.
D. Notwithstanding termination or expiration of this Agreement,
the Asure Program, and the parties' refund/exchange
obligations and Fee payment obligations hereunder shall
continue to apply to Online Sales made prior to the date of
termination or expiration ("Pre-termination Sales"). The
Company will have no liability to Consumers or Merchant with
respect to Online Sales made after the date of termination or
expiration.
-12-
16. DISPUTE RESOLUTION
Any legal or equitable action to enforce any of the terms of this
Agreement shall be exclusively brought in the State or Federal Courts located in
the State and County of New York, USA applying New York law, where both parties
hereby consent to the personal jurisdiction of the Courts.
17. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE FOR
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING
WITHOUT LIMITATION LOSS OF PROFITS OR REVENUES, COST OF
CAPITAL, DOWNTIME COSTS, OR SIMILAR DAMAGES, PROVIDED,
HOWEVER, THAT IF THE LAW OF ANY JURISDICTION APPLICABLE TO
THIS AGREEMENT DOES NOT PERMIT SUCH DAMAGES TO BE COMPLETELY
DISCLAIMED, THIS CLAUSE SHALL BE INTERPRETED AS NECESSARY TO
GIVE THE COMPANY THE FULL BENEFIT OF ANY DISCLAIMER OR
LIMITATION OF SAID DAMAGES AS PERMITTED UNDER SUCH LAW. THE
COMPANY'S TOTAL LIABILITY (WHETHER IN TORT, CONTRACT OR
OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE PRODUCT
LIABILITY OR STRICT LIABILITY) UNDER THIS AGREEMENT OR WITH
RESPECT TO ANY ITEMS USED OR PROVIDED BY THE COMPANY OR ANY
THIRD PARTIES IN CONNECTION WITH THIS AGREEMENT WILL IN NO
EVENT EXCEED THE TOTAL COMPENSATION PAID BY MERCHANT TO THE
COMPANY UNDER THIS AGREEMENT.
18. FORCE MAJEURE
If at any time during the term of this Agreement either party is unable
to perform its obligations hereunder by reason of the occurrence of an
Event of Force Majeure, the party claiming such occurrence will be
excused from the performance of its obligations hereunder, during the
continuance of such liability, provided that such party provides prompt
notice of the occurrence of an Event of Force Majeure, makes reasonable
efforts to perform its obligations, and has made reasonable efforts to
diminish the impact of such Event of Force Majeure.
-13-
19. INDEMNITY
Merchant shall indemnify and hold harmless the Company, together with
its officers, directors, employees, shareholders, agents, independent
contractors, successors and assigns from and against any and all
damages, loss, costs, charges and expenses of whatever kind or nature,
including counsel and solicitor's fees, which the Company shall at any
time incur or sustain by reason of (i) Merchant's investigation and
resolution of any disputes regarding Merchant's performance of its
obligations under the Merchant's Policy, (ii) Merchant's failure to
fully comply with any provision of this Agreement, including without
limitation its failure to honor and fully comply with the Merchant's
Policy, (iii) the Company's payment to any Customer of any amounts
under the Asure Program in settlement of any claim made under the
Merchant's Policy, (iv) any claims regarding Merchant's privacy policy
and breaches of or amendments to such privacy policy, (v) any negligent
act of Merchant or its officers, directors, employees or contractors,
and (vi) claims regarding the manufacture, performance or condition of
any Qualified Products. Merchant shall make all payments required under
this indemnity within 10 days after receipt of a written request from
the Company.
20. MISCELLANEOUS
1. Merchant shall promptly inform the Company of any
information related to this Agreement, the Asure
Program or Merchant's Web Site which could reasonably
lead to a claim, demand or liability of or against
the Company by any third party.
2. Privacy Protection. In the event that any applicable
laws or regulations restrict the transfer of, or
access to, the Merchant Information or any other
information required to be provided for hereunder,
the parties shall work together in good faith to find
the alternative means of providing such information
to the Company. Merchant agrees to maintain, adhere
to and prominently display on Merchant's Web Site, or
other public communication, a privacy policy
consistent with its obligations under this agreement
and applicable law.
3. Merchant may not assign this Agreement or any of its
rights and obligations hereunder without the prior
written consent of the Company. Assumption of the
Agreement by any successor to Merchant (whether by
merger, consolidation or
-14-
otherwise) will be subject to the Company's prior
written approval.
4. The rights and obligations set forth in Articles 2,
3, 5, 6, 7,11,12,15, 16 and 18 shall survive the
termination or expiration of this Agreement.
5. The rights, powers and remedies given to the Company
by this Agreement are in addition to, and not in lieu
of, any other rights, powers, and remedies which the
Company may have or acquire against Merchant, whether
by the terms of any other agreement or by operation
of law or otherwise.
6. Merchant hereby waives all right to claim any of its
property, including homesteads, as exempt from levy,
execution, sale, or other legal process, under the
laws of Canada, any province or territory thereof, or
under the laws or Constitution of the United States
of America, any state or states, territory or
possession thereof.
7. The Company and Merchant each acknowledges that the
provisions of this Agreement were negotiated to
reflect an informed, voluntary allocation between
them of all risks (both known and unknown) associated
with the transactions contemplated hereunder. The
limitations and disclaimers related to warranties and
liability contained in the Agreement are intended to
limit the circumstances and extent of liability.
Merchant acknowledges that it has been advised by the
Company to obtain, and has been given the opportunity
to obtain, independent legal advice with respect to
this Agreement and its rights and obligations
hereunder.
8. All notices and other communications required or
permitted by this Agreement to be given by a party to
another party shall be in writing, and until
otherwise specified in a written notice by the other
party, shall be sent to the other party by hand
delivery, certified mail return receipt requested or
by commercial overnight courier at its notice
addresses set forth below:
If to the Company: Return Assure, Inc.
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX
With a copy to: Xxxxxx X. Xxxxxx, Esq.
Xxxxxx Gottbetter & Xxxxxxxx, LLP
-15-
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 XXX
If to Merchant: [Name and Address]
Notices shall be deemed given as of the fifth business day
following dispatch by certified mail; or on the date of actual delivery by
commercial messenger or overnight carrier service.
9. Notwithstanding the foregoing provisions for written notice,
the parties may from time to time agree upon other mutually
acceptable electronic means (such as e-mail) for the
transmission of notices and/or other communications. Any
notices transmitted by electronic means shall be deemed given
on the date of actual transmission.
10. If any provision of this Agreement or its application to any
party or circumstances shall be determined to be invalid and
unenforceable to any extent, the remainder of this Agreement,
or the application of such provision or circumstances other
than those as to which it is determined to be invalid or
unenforceable, shall not be affected thereby and each
provision hereof shall be valid and shall be enforced to the
fullest extent permitted by law.
11. The failure of either party to insist upon a strict
performance of, or to seek remedy of, any one of the terms or
conditions of this Agreement or to exercise any right, remedy
or election set forth herein or permitted by law shall not
constitute or be construed as a waiver or relinquishment for
the future of such term, condition, right, remedy or election,
but such items shall continue and remain in force and effect.
All rights or remedies or either party specified in this
Agreement and all other rights or remedies that either party
may have at law, in equity or otherwise, shall be distinct,
separate and cumulative rights or remedies, and no one of
them, whether exercised or not, shall be deemed to be in
exclusion of any other right or remedy of a party. Any
consent, waiver or approval of any act or matter must be in
writing and shall apply only to the particular act or matter
to which such consent or approval is given.
12. This Agreement may be signed in counterparts and each
counterpart will constitute an original document and the
counterparts, taken together, will constitute one and the same
instrument.
13. This Agreement consists of the provisions and appendices and
-16-
schedules that have been identified herein and constitutes the
complete, exclusive and final statement of the terms and
conditions of the agreement between the parties with respect
to its subject matter, superseding all prior agreements,
negotiations, and proposals.
14. This Agreement may not be amended or modified except by an
instrument in writing, signed by both the Company and
Merchant. Each party will execute and deliver such further
agreements and other documents and do such further acts and
things as any other party reasonably requests to evidence,
carry out or give full force and effect to the intent of this
Agreement.
15. The parties are independent contractors and agree that no
partnership, joint venture or agency or other similar legal
relationship will be created or will be deemed to be created
by this Agreement or any action of the parties pursuant to
this Agreement. Merchant shall not in any manner commit or
propose to commit the Company to any obligation or liability
to any third Party.
16. The headings in this Agreement form no part hereof and shall
be deemed to have been inserted for convenience of reference
only.
17. Time shall be of the essence of this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of the
day and year first above written.
Return Assured Incorporated. [Merchant]
By: By:
----------------------- -----------------------
Print Name: Print Name:
------------------- ------------------
Title: Title:
----------------- -----------------
-17-
