ISO Agreement

Special ISO Agreement This Special ISO Agreement (this “Agreement”) is made by and between Business Operating System LLC d/b/a PAYS (hereinafter “PAYS”), with principal place of business located at 6203 San Ignacio Ave #110, San Jose, CA 95119, and “ISO” and PAYS are collectively the “Parties” to this Agreement. Background WHEREAS PAYS owns, operates, and licenses a proprietary restaurant point-of-sale (“POS”) management system (the “PAYS System”) for its merchant customers (each a “Merchant”), enabling the Merchants to make POS transactions, and providing support for the PAYS System (collectively, the “POS Services”); WHEREAS ISO is an independent resale organization engaged in the resale of POS systems like the PAYS System, and provides Merchant Processing Services to merchants through bank(s), which are typically used in conjunction with such POS systems; and WHEREAS PAYS desires to continue to market and sell the POS Services and desires to engage ISO to assist in its marketing efforts, subject to the terms of this Agreement, and ISO desires to accept such engagement; and WHEREAS PAYS and ISO desire to enter into this Agreement for ISO to market and sell PAYS POS Services subject to the terms and conditions of this Agreement. Agreement: NOW THEREFORE, in consideration of the mutual covenants and conditions set forth below, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree that the above Background is true and correct, and hereby agree as follows: 1. Appointment as ISO. PAYS appoints ISO, and ISO accepts such appointment, for ISO to be a non-exclusive reseller of the POS Services, per PAYS established guidelines (the “Resale Services”) described and outlined in one or more schedules or other documents that are attached to this Agreement or that refer to this Agreement (collectively, the “Schedules”). ISO will have the right to market and sell the Resale Services anywhere within the continental United States. The Schedules, including, without limitation, all terms, conditions, and agreements set forth therein, are hereby made a part of this Agreement by reference. In the case of any conflict between the Schedules and the main body of this Agreement, the provisions providing the more stringent obligations on ISO shall govern and control. 2. ISO Obligations. ISO shall use its best efforts to market and sell the Resale Services, and only together with its own merchant processing services. ISO shall make no representations, warranties, or other statements concerning the Resale Services that exceed or are inconsistent with the written marketing materials, subscription agreements, PAYS directives, PAYS guidelines and instructions, and/or any other written directions provided to ISO by PAYS. Prior to finalizing any sale of any Resale Services, ISO shall ensure that the Merchant executes an acceptable agreement (made available by PAYS) between PAYS and the Merchant governing the Merchant’s purchase of the applicable Resale Services. Notwithstanding the foregoing, PAYS reserves the right, in PAYS sole discretion, to refuse service to any Merchant. If PAYS refuses to provide service to a Merchant, PAYS will inform ISO of its intent to terminate the services for said Merchant, and its subscription agreement with said Merchant will be terminated. ISO shall maintain comprehensive general liability and other insurance policies in amounts sufficient to insulate PAYS from liabilities arising from ISO’s acts and omissions. ISO shall provide appropriate certificates of insurance upon request by PAYS. ISO shall be responsible for and pay all expenses, fees and costs incurred in conducting its business, including selling the Resale Services and otherwise performing its obligations under this Agreement, with no right to reimbursement from PAYS. ISO shall comply with all applicable laws and regulations. ISO shall conduct business in a manner that always reflects favorably on the Resale Services and the good name, goodwill, high quality image, credibility and reputation of PAYS and not engage in deceptive, misleading or unethical practices that are or might be detrimental to PAYS. ISO shall also be obligated to comply with the Reseller Rules & Responsibilities attached as an exhibit to this Agreement, which is incorporated into this Agreement by reference (the “Rules”). 3. Additional Obligations. Throughout the term of this Agreement, in addition to the above enumerated obligations, ISO agrees and warrants that it shall abide by the rules set forth in this section in fulfilling its obligations per this Agreement. 3.1. Losses. All losses incurred by PAYS attributable to Merchants, including but not limited to fraud, chargebacks and nonpayment of Merchant fees, will be borne by PAYS, except as outlined in this Agreement or its Schedules. However, ISO will be liable to PAYS for all losses, fines, fees and expenses arising out of ISO’s fraud, negligence, recklessness or failure to comply with the terms of this Agreement. If any subscription contract is terminated for any reason without meeting the Return Obligation (as defined herein), the party responsible shall pay any applicable penalty fee stated in the Merchant’s agreement. 3.2. Return Obligation. ISO understands that all monthly subscription agreements contain a Return Obligation clause, under which, if the agreement is terminated for any reason prior to the end of the Term, the hardware must be returned to PAYS along with all components. This applies only to loaned/rental items. 4. Licenses. ISO understands that PAYS will grant Merchants non-exclusive, non-transferable, limited revocable licenses, one per terminal, for the use of PAYS' proprietary PAYS System, for internal business purposes at the address identified by Merchant. 5. Prices & Payment. In consideration of Resale Services, ISO or Merchant shall pay the amounts set forth in the attached Schedule(s). All amounts payable by ISO or Merchant to PAYS are in US dollars and are non-refundable. For non-recurring charges, PAYS will invoice ISO or the Merchant before performing the Resale Services, as per each complete sales contract. For recurring charges, PAYS will invoice ISO or the Merchant monthly. Payments of invoiced fees, expenses, and/or taxes shall be due immediately upon receipt of the invoice. If payment is not received when due, PAYS will apply an interest rate of 1.5% per month on any outstanding amounts. Suppose ISO or Merchant fails to make payments when due. In that case, PAYS may, in addition to any other rights and remedies, suspend or delay the provision of Resale Services, immediately terminate this Agreement, and/or recover its costs and expenses, including reasonable attorneys' fees incurred in collecting such payments. PAYS may require ISO or Merchant to execute a consent agreement for direct payment of all due invoices via Electronic Fund Transfer. Additionally, PAYS may offset any amounts owed by ISO or Merchant to PAYS against any amounts owed to ISO by PAYS. PAYS reserves the right to modify the prices for Resale Services in the applicable Schedule(s) or in its standard price list on the PAYS website, with thirty (30) days' notice to ISO. 6. Setoff Rights, Security Interests. PAYS shall have the right to set off any amounts owed by ISO under this Agreement against any funds credited to or owed by PAYS to ISO. PAYS may exercise this right of setoff at any time and without notice to ISO, whether the obligations of ISO to PAYS are then due as security for ISO's obligations to PAYS. 7. Term & Termination. This Agreement shall commence upon the Effective Date and shall continue for 1 [year] from the Effective Date (the “Initial Term”). Then, unless a Party has provided the other Party with at least thirty (30) days prior written notice of its desire to terminate this Agreement at the end of the Initial Term, this Agreement shall automatically renew for an additional 1 [year] period on each anniversary of the Effective Date (each an “Additional Term”) until a Party provides the other Party with written notice of its desire to terminate this Agreement at least thirty (30) days prior to the end of such Additional Term, in which case this Agreement shall terminate at the end of such Additional Term. The Initial Term and all Additional Term(s) are, collectively, the “Term.” Notwithstanding anything in this Agreement, either Party may terminate this Agreement immediately upon a breach of this Agreement by the other Party. Services provided to the Merchant will not be impacted until both Parties arrive at a mutual decision regarding termination or modification of this Agreement. Upon the termination of this Agreement for any reason, each Party shall promptly deliver to the other Party all correspondence, drawings, blueprints, manuals, letters, notes, notebooks, reports, programs, proposals, and any documents concerning the other Party’s customers or concerning products or processes used by the other Party and, without limiting the foregoing, will promptly deliver to the other Party any and all other documents or materials containing or constituting Confidential Information. 8. Names and Trademarks. Each Party acknowledges the value of the other’s name, trademarks, and brand identity. PAYS hereby grants ISO a limited, non-exclusive, revocable license to use the name “PAYS,” the PAYS logo, and related trademarks for marketing, advertising, and promotional purposes directly connected with the sale or promotion of PAYS products and services under this Agreement. So’s use of the PAYS name or trademarks shall comply with PAYS’ brand and marketing guidelines and shall maintain the integrity, reputation, and goodwill of PAYS. PAYS may request ISO to modify or discontinue any use that PAYS, in its reasonable discretion, determines is inconsistent with its brand standards or reputation. Except as expressly permitted above, neither Party shall use the other’s name or trademarks for unrelated purposes or in a way that implies endorsement or partnership beyond this Agreement. Nothing in this Agreement shall be construed as transferring ownership of any trademarks, service marks, or other intellectual property of either Party. 9. Proprietary Information & Non-Disclosure. Each Party (the “Disclosing Party”) may, in connection with this Agreement, disclose to the other Party (the “Receiving Party”) certain confidential and proprietary information. For purposes of this Agreement, “Confidential Information” shall mean (i) the confidential and proprietary information of the Disclosing Party which is of a special and confidential nature and has tangible or intangible value and which includes, but is not limited to, the following: (1) information related to the suppliers, customers, and prospective suppliers and customers of the Disclosing Party, (2) information concerning or related to the business of the Disclosing Party that could be used as a competitive advantage by competitors if revealed or disclosed to such competitors or to persons or entities revealing or disclosing same to such competitors, and (3) the Disclosing Party’s “trade secrets”, as that term is defined under the State of Florida statutes, as amended from time to time (“Trade Secrets”); (ii) the confidential and proprietary information of any other person or entity that the Disclosing Party is obligated to maintain or hold as confidential; and (iii) any and all oral or written analyses, notes, compilations, studies, interpretations, extracts or summaries which contain, reflect or are based upon, in whole or in part, any of the confidential and proprietary information described in items (i) or (ii) hereof, as well as all photo, electronic or other copies or reproductions, in whole or in part, of any of the foregoing, stored in whatever medium (including electronic or magnetic). Confidential Information shall exclude any information that: (a) is required to be disclosed by any court or government authority with competent jurisdiction; or (b) is generally and freely publicly available through no fault of the Receiving Party. The Receiving Party acknowledges that the Confidential Information has been and shall continue to be of central importance to the business of the Disclosing Party, and that disclosure of it to, or its use by, others could cause substantial loss to the Disclosing Party. The Receiving Party agrees that, at all times during and after the Term, it shall not directly or indirectly use, divulge or disclose to any person or entity, any Confidential Information obtained as a result of the performance of this Agreement, and shall hold all such Confidential Information confidential and inviolate and shall not use it for any purpose other than for selling or performing the Resale Services. ISO further acknowledges and agrees that the PAYS System belongs solely to PAYS and that ISO has no right to use the PAYS System, and that ISO shall not copy, change, disassemble, decompile, reverse engineer, sublicense, assign, timeshare, sell, give away, loan, rent, lease, transfer (electronically or otherwise), create software and/or hardware of, prepare derivative works of, and/or separate all of any components of, the PAYS System, or any other Confidential Information. 10. Non-Solicitation of Merchants. With respect to the Resale Services, without the other Party’s prior written consent, neither Party shall cause or permit any of its employees, agents, principals, affiliates, subsidiaries, or any other person or entity (a) to solicit or provide POS Services to any Merchant to provide Resale Services; (b) to solicit or otherwise cause any Merchant to terminate its relationship with the other Party; or (c) to solicit or market services to any merchant that is already directly or indirectly provided Merchant Processing Services by the other Party. This Section shall survive for a period of 1 year following any termination of this Agreement. 11. Disclaimer of Warranties. THE PAYS SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, AND PAYS DISCLAIMS ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF ACCURACY, COMPLETENESS, QUALITY AND CONFORMITY TO ANY DESCRIPTION, AND ANY WARRANTIES THAT MIGHT OTHERWISE ARISE BY COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. PAYS DOES NOT WARRANT THAT THE PAYS SERVICES WILL BE SECURE, OPERATE WITHOUT ERRORS OR INTERRUPTION OR WILL MEET THE NEEDS OF ANY MERCHANT. 12. Indemnification. Each Party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other Party, its employees, members, directors, managers, officers or agents (collectively, the “Indemnified Party”) from and against any loss, liability, damage, penalty or expense (including reasonable attorneys' fees, expert witness fees and cost of defense) the Indemnified Party may suffer or incur as a result of (i) any failure by the Indemnifying Party or any employee, agent or affiliate of the Indemnifying Party to comply with the terms of this Agreement; (ii) any warranty or representation made by the Indemnifying Party being false or misleading; (iii) any representation or warranty made by the Indemnifying Party or any employee or agent of the Indemnifying Party to any third person other than as specifically authorized by this Agreement; (iv) the manner or method in which the Indemnifying Party performs its services pursuant to this Agreement; (v) negligence, recklessness or willful misconduct of the Indemnifying Party or its subcontractors, agents or employees; (vi) any losses or errors to a client’s database or online dashboard due to changes made by the Indemnifying Party, its agents or employees, that are given access to these services; (vii) (a) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on the Indemnified Party’s income, and (b) all government permit fees, customs fees and similar fees which the Indemnified Party may incur with respect to this Agreement; and (viii) any alleged or actual violations by the Indemnifying Party or its subcontractors, employees or agents of any card association rules, governmental laws, regulations or rules. Each Party is an independent contractor of the other, and as such, each Party assumes all liability for workers’ compensation and employers’ liability coverage for its own employees and contractors. 13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY CLAIM BASED UPON A THIRD-PARTY CLAIM OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF THE PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR FOR ANY DIRECT DAMAGES EXECEEDING TEN THOUSAND ($10,000) DOLLARS. IN WITNESS WHEREOF, the undersigned Parties have made and entered into this Agreement as of the Effective Date. This Agreement, including, without limitation, each of the Schedules (and the terms, conditions, and agreements included in or referenced by such Schedules), embodies the entire agreement between, and the understanding of, the Parties in respect of the subject matter contained herein. This Agreement will be governed by and construed in accordance with the laws of the State of Florida without reference to conflict of law provisions. Any action, proceeding, arbitration or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in the federal judicial district that includes Florida City, Florida. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. Any claim, dispute or controversy ("Claim") by either ISO or PAYS against the other, or against the employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents or assigns of the other, arising from or relating in any way to this Agreement or to our relationship, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association, under its Commercial Arbitration Rules in effect at the time the Claim is filed, except as otherwise provided below. All Claims are subject to arbitration, no matter what theory they are based on or what remedy they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law. Claims and remedies sought as part of a class action, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between ISO and PAYS. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the American Arbitration Association in connection with the arbitration, as well as for any reasonable attorneys' fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes Florida City, Florida. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party's use of (or advancement of any Claims, defenses or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or other property interests for contractual debts now or hereafter owed by either party to the other. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, ISO AND PAYS MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY, AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION. Neither Party may assign or transfer this Agreement without the other Party’s prior written consent. Suppose any provision of this Agreement is held to be unenforceable to any extent. In that case, the provision shall be fully enforced permissible and/or reformed to effect as fully as permissible the intent of the Parties expressed herein, and the other provisions shall remain fully effective. The provisions of this Agreement, other than ISO’s appointment as ISO in Section 1 and ISO’s obligation to market and sell Resale Services in Section 2, shall survive the termination of this Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be considered to constitute one and the same Agreement. All notices and other communications required or permitted under this Agreement shall be in writing and given by personal delivery, email, telecopy (confirmed by a mailed copy), or first-class mail, postage prepaid, sent to the addresses set forth herein. No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the parties and therefore any ambiguity or uncertainty shall be interpreted accordingly. This Agreement may be transmitted and/or signed by electronic signature, facsimile, and/or by email in .pdf format, and the effectiveness of such signatures shall be the same as an original copy with manual signatures and shall be binding on all Parties. Schedule A - Reseller Rules & Responsibilities These Reseller Rules & Responsibilities are made a part of, and are incorporated into by this reference, that certain Special ISO Agreement, between PAYS and ISO (the “Special ISO Agreement”). ISO shall comply with the following rules and responsibilities: 1. Merchant Relationship and Support Responsibilities. The ISO shall assume sole responsibility for managing and maintaining the Merchant relationship. It shall facilitate PAYS in providing the Merchant with all necessary services, including but not limited to set-up, configuration, implementation, training, go-live coverage, and ongoing support and maintenance, to ensure that the Merchant is able to fully utilize the PAYS System in accordance with the applicable purchase/subscription agreement. Notwithstanding the foregoing, the ISO agrees to provide appropriate support to the Merchants as may be required from time to time. PAYS shall provide the ISO with the necessary support throughout the entire process to ensure the successful provision of services to the Merchant. 2. Equipment and Hardware Requirements. To ensure that all Merchants receive consistent performance and fully benefit from their use of the PAYS System, it is essential that Merchants use only the equipment and hardware provided by PAYS (the “PAYS Hardware”). Accordingly, the ISO shall exclusively provide PAYS Hardware to the Merchants and shall refrain from providing any hardware other than PAYS Hardware in connection with the Merchant’s use of the PAYS System. If the ISO or Merchant possesses compatible hardware, it may be used; however, PAYS shall not provide any warranty or support for such third-party hardware. 3. Right to Review and Verify Compliance. The ISO hereby grants PAYS the right to review ISO’s documents, records, and/or directly contact any Merchant, in order to verify ISO’s compliance with the terms and conditions set forth in this Agreement. Schedule A – Licensing Cost $59/month (Starts) – We can bill to Merchant or ISO Second Terminal (Same Merchant): $29/mo https://payspos.com/pos-system-cost/ https://payspos.com/shop/