TECHNOLOGY RESELLER AGREEMENT

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY

By using PaidYET Partner Portal and any other system as a applicable to this TECHNOLOGY RESELLER AGREEMENT (Agreement), you are deemed to have agreed to all terms, conditions, use, and notices contained or referenced herein. This Agreement is made effective by PAYMINTZ, INC., D/B/A PAIDYET (“PAIDYET”).

WHEREAS, PAIDYET provides a secure, high performance SaaS platform along with a broad range of transaction processing, security and reporting products and services and related goods and services (the “PAIDYET Gateway”) and PAIDYET wishes to expand its market share by retaining Reseller to assist in marketing its PAIDYET Gateway to persons or entities wishing to purchase the PAIDYET Gateway (“Merchants”) from PAIDYET.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Appointment.  (a) Subject to the terms and conditions of this Agreement, PAIDYET hereby appoints Reseller as a reseller of the PAIDYET Gateway.  Reseller shall interact with entities and individuals in order to obtain information from them as to whether they are interested in purchasing the PAIDYET Gateway.  Reseller will obtain all information and documentation reasonably required by PAIDYET.  Reseller acknowledges that all Merchants are to be approved by PAIDYET in its sole discretion and Merchants will be able to utilize the PAIDYET Gateway effective only upon such approval.

(b)        The parties agree that at all times, PAIDYET owns all right, title and interest to the PAIDYET Gateway, all alterations, modifications, improvements, derivatives and the documentation provided to or by Reseller in connection with this Agreement.  Reseller shall not remove or alter any copyright notices or proprietary legends affixed by PAIDYET to the PAIDYET Gateway.  PAIDYET shall also have sole and exclusive ownership of all right, title, and interest in and to its proprietary information and materials, including any derivative works thereof, including ownership of all copyrights, trademarks, service marks, patents, and trade secrets pertaining thereto (collectively, the “Proprietary Information”).  The PAIDYET Gateway is expressly included within the meaning of the Proprietary Information.  Reseller may use the PAIDYET Gateway and Proprietary Information, subject only to the rights and privileges expressly granted by PAIDYET for purposes of this Agreement.

(c)        PAIDYET may provide the PAIDYET Gateway directly or through third party vendors.  In doing so, PAIDYET shall use commercially reasonable efforts to provide the PAIDYET Gateway and maintain it in an uninterrupted and error-free fashion consistent with its practices in effect as of the date of this Agreement.

However, the parties acknowledge that the PAIDYET Gateway is a computer network-based service which may be subject to outages, data loss and delay occurrences.  In such an event, PAIDYET shall use commercially reasonable efforts to diligently and promptly remedy any and all material interruptions and when possible notify Reseller.  Nonetheless, PAIDYET will not be liable in any manner for any data losses, interruptions, outages, or other delay occurrences relating to the PAIDYET Gateway by PAIDYET or its vendors.

(d)        Except as expressly provided to the contrary in this Agreement, Reseller shall not, and shall not knowingly cause or permit any non-party, to use or reproduce the PAIDYET Gateway.  Reseller shall not, and shall not knowingly cause or permit any non-party, to disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the PAIDYET Gateway, or otherwise apply any procedure or process to the PAIDYET Gateway in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the PAIDYET Gateway or any algorithm, process, procedure or other information contained in PAIDYET Gateway.  Except as expressly authorized herein, Reseller may not rent, lease, assign, sublicense, transfer, modify, alter, or time share the PAIDYET Gateway.

(e)        Reseller may elect to either (i) Reseller Payment to PAIDYET or (ii) PAIDYET Payment to Reseller, as outlined in the Partner’s Partner Portal account.

(i) Reseller agrees to pay PAIDYET for the PAIDYET Gateway on a monthly basis via deduction of all applicable fees directly from Reseller’s bank account. Reseller shall provide PAIDYET with all necessary bank account, routing and related information.  PAIDYET will deduct automatically all such fees and charges within a time frame left to the full and singular discretion of PAIDYET, regardless of the status of the Reseller’ bank account.

(ii) PAIDYET shall pay the Residual payment to Reseller, in situations when Reseller earns a Residual payment, on the first business day of the month following the month in which PAIDYET collects the applicable fees from the related Merchants. Payments to Reseller will be deposited into Reseller’s bank account. If Reseller’s bank account number and/or federal income tax ID number changes, Reseller shall promptly provide PAIDYET with written notice of the change and the new number(s).

“Residual” means the difference between the Sell Rate and any fees associated with providing the services under this Agreement. “Sell Rate” means the amount PAIDYET actually bills a Merchant for a specific product or service, as agreed upon by the Reseller and Merchant during the setup process.  Partner fees shall be held in strict confidence by the parties hereto.  PAIDYET shall have the right to change this plan at any time in its sole discretion by providing thirty (30) days’ written notice to Reseller.  Reseller shall have sixty (60) days from the receipt of any invoiced fees to notify PAIDYET of any errors in or disputes of fees invoiced and debited.  If Reseller does not notify PAIDYET within the sixty (60) day time period, Reseller shall be deemed to have accepted without question such payment and may not in the future contest the amount it was credited or debited or seek reimbursement for any discrepancies.

The Transaction fee is applicable to any authorization attempt, including but not limited to, refund, adjustment, sale, capture, decline, refund, or void and any form of transaction for the purpose of processing payments, including but not limited to, debit, credit, gift, P2P, and ACH transactions. Additional costs not listed that are applicable and will be separately based on then current rates include but are not limited to, terminals, device programming, shipping and handling, and other related services.

(f)        Reseller shall comply at all times with, and require Merchants and/or any third party through whom Reseller may offer the PAIDYET Gateway (“Other Resellers”) to comply with all applicable and then-current legal obligations and security measures, including, without limitation, those issued by the United States Government, federal, state and municipal laws and ordinances, the Card Association, the Federal Trade Commission, the PCI Security Standards Council, and any other governing body. Reseller shall comply with, and require Merchants and/or Other Resellers to comply with, all PAIDYET security protocols, notices and safeguards in effect during the term of this Agreement.

(g)        During the term of this Agreement, Reseller, its principals and its affiliates shall not enter into any agreement to solicit Merchants for any payment gateway company that competes with PAIDYET or any of PAIDYET’s vendors, without PAIDYET’s prior written consent, nor shall Reseller, its principals or any of its affiliates enter into any relationship with any organization or entity that would affect an indirect relationship with any such company.

2. Independent Contractors.   The relationship of PAIDYET and Reseller is that of independent contractors.  Neither party nor its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of the other party, nor do they have any authority to bind the other party by contract or otherwise to any obligation.

3. Term and Termination.   (a)  The initial term of this Agreement shall be for a period of three (3) years, commencing on the date first set forth on the application.  This Agreement shall thereafter be automatically renewed for additional terms of one (1) year each unless either party notifies the other no later than thirty (30) days prior to the end of the current term that it does not wish to renew this Agreement.  Either party may terminate this Agreement if the other party commits a material breach of this Agreement that is not cured within fifteen (15) days of written notice. PAIDYET may terminate this Agreement for any reason, or no reason at all, by providing Reseller with seven (7) days written notice.

(b)        Effect of Termination.  Upon termination of this Agreement: (a) Reseller’s license to resell the PAIDYET Gateway shall be automatically and immediately revoked (however any licenses previously purchased shall be honored until the date of their expiration), and (b) PAIDYET shall take over the duties of providing the PAIDYET Gateway to Merchants. Any and all compensation and residuals related to the Merchants placed under this Agreement shall terminate on the first day calendar month after any termination or expiration of this Agreement. Reseller, if requested by PAIDYET in writing, will assign all merchant agreements to PAIDYET and PAIDYET shall be discharged and released of any obligation to pay compensation to Reseller.

4. Indemnification.  Reseller agrees to indemnify, defend, and hold harmless PAIDYET, its employees, Resellers and agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees, expert witness fees and cost of defense) they may suffer or incur as a result of  (i) any failure by Reseller, Merchant or any employee, agent or affiliate of Reseller to comply with the terms of this Agreement; (ii) any warranty or representation made by Reseller being false or misleading; (iii) any representation or warranty made by Reseller or any employee or agent of Reseller to any third person other than as specifically authorized by this Agreement, (iv) any claims related to the PAIDYET Gateway, (v) negligence of Reseller, Merchants or its subcontractors, agents or employees, or (vii) any alleged or actual violations by Reseller, Merchants or its subcontractors, employees or agents of any card association rules, governmental laws, regulations or card association rules.

5. Disclaimer of All Warranties.  THE PAIDYET GATEWAY IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER.  PAIDYET DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO RESELLER AND ANY THIRD PARTIES AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PAIDYET OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF PAIDYET’S OBLIGATIONS.

6. Limitation of Liability.  PAIDYET SHALL NOT BE LIABLE TO RESELLER OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PAIDYET GATEWAY, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF PAIDYET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  UNDER NO CIRCUMSTANCES SHALL PAIDYET’S TOTAL LIABILITY TO RESELLER OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE THOUSAND DOLLARS ($1000) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.

7. Non-Solicitation. During the period that this Agreement is in effect and for the three (3) year period immediately following termination of this Agreement, each party shall not directly or indirectly through another entity (i) call on, solicit or service any customer, supplier, licensee, licensor, consultant, contractor or other business relation of the other party or its respective subsidiaries in order to induce or attempt to induce such person to cease doing business with the other party or its subsidiaries, or in any way to intentionally interfere with the relationship between any such customer, supplier, licensee, licensor, consultant, contractor or other business relation and the other party or its subsidiaries (including, without limitation, making any negative statements or communications about the other party or its subsidiaries) or (ii)  intentionally call on, solicit, or take away or attempt to call on, solicit, or take away any of the other party ‘s customers and vendors on whom the party called or became acquainted during its relationship with the other party, either on its behalf or that of other person, firm, or corporation.

8. Confidential Information.  The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the PAIDYET Gateway and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party.  Confidential Information does not include information that:  (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party.  As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall:  (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure.  The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information.  The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure.

9. Intellectual Property. “Intellectual Property” means all of the following owned by a party:  (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names.  The rights owned by a party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.”  Other than the express licenses granted by this Agreement, PAIDYET grants no right or license to Reseller by implication, estoppel or otherwise and PAIDYET shall own all right and title to (i) the PAIDYET Gateway, (ii) any modifications, improvement, suggested changes or other changes to the PAIDYET Gateway made by Reseller or (iii) any Intellectual Property Rights of PAIDYET.  Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of PAIDYET, in the PAIDYET Gateway) and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein.  PAIDYET (and not Reseller) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for the PAIDYET Gateway and any Intellectual Property Rights incorporated therein.  Reseller will cooperate with PAIDYET in pursuing such protection, including without limitation executing and delivering to PAIDYET such instruments as may be required to register or perfect PAIDYET’s interests in any Intellectual Property Rights and any assignments thereof.  Reseller shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from PAIDYET in connection with this Agreement.

10.  This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.  Neither party shall assign, delegate, subcontract, license, franchise, or in any manner attempt to extend to any third party any right or obligation under this Agreement except as otherwise permitted herein without the prior written consent of the other party; provided, however, PAIDYET may assign this Agreement and its rights hereunder to a purchaser of all or substantially all of its assets or equity.  This Agreement sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, shall be effective unless assented to in writing by both parties.

In any action arising from the alleged breach of this Agreement, or to enforce this Agreement, the final prevailing party will recover its reasonable attorneys’ fees, costs and expenses.

11. Dispute Resolution.  All disputes arising under or in connection with the Agreement will initially be referred to the senior executives of each party. The senior executives will use their best efforts to resolve the dispute informally and amicably. If, after negotiating for thirty (30) days (or for some longer period if the parties agree), no resolution of the dispute is reached by the senior executives, the parties will submit the dispute to binding arbitration in California pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and the procedures set forth in paragraph 10.  Any controversy or claim arising out of or relating to this contract, or the breach, termination, enforcement, interpretation, or validity thereof, including determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules effective as of the date of this Agreement, except as specified below.  Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  The place of arbitration shall be in Los Angeles County, California, and the number of arbitrator(s) shall be one.  In applying the AAA’s Commercial Arbitration Rules, the parties agree to the following exceptions:  (1) the procedures for Large, Complex Commercial Disputes shall not apply; and (2) except for the direct exchange of documents, exhibits, and other information that the parties intend to submit at the arbitration hearing and the identification of witnesses that the parties intend to call at the arbitration hearing, there shall be no discovery unless ordered by the arbitrator upon a showing of need.

12. Jurisdiction; Venue; Governing Law. Subject to Section 11 above, this Agreement shall be governed by and construed in accordance with the laws of the State of California (irrespective of its choice of law principles). The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in federal or state court in Los Angeles County, California. Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party, and each party hereby submits to the exclusive personal jurisdiction and venue of such courts.

13.  The failure of either party to this Agreement to object to or to take affirmative action with respect to any conduct of the other which is in violation of the terms of this Agreement shall not be construed as a waiver of that conduct or any future breach or subsequent wrongful conduct.  If any part, term or provision of this Agreement is declared and determined by any court or arbitrator to be illegal or invalid, such declaration and determination shall not effect the validity of the remaining parts, terms or provisions.  The various headings in this Agreement are inserted for convenience only and shall not affect this Agreement or any portion thereof.  This Agreement may be executed in two or more counter-parts or by fax, each of which shall be deemed an original, all of which together shall constitute one and the same instrument. All representations, covenants and warranties shall survive the execution of this Agreement, and sections 1, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 shall survive termination of this Agreement.

By electronically accepting or by proceeding with the use of PaidYET, you acknowledge that you have received the Agreement, either by receiving a physical copy or by viewing the Agreement at https://paidyet.com/partner-terms.  You have read the Agreement and understand it. You understand and agree that by viewing the Agreement online, you have acknowledged delivery of the full Agreement with the same force and effect as if you had received a physical copy of the Agreement. You understand that it is you responsibility to retain a current, complete copy of the Agreement either by retaining the physical copy or by printing it out or electronically storing the electronic version which is located at https://paidyet.com/partner-terms.