Seller Purchase Financing Loan Program Seller Participation Agreement
Last Revised:March 8, 2023
This Seller Purchase Financing Participation Agreement (“Agreement”) sets forth terms under which Cherry Technologies, Inc., a Delaware corporation (“Program Manager”) will refer Customers of provider of services identified below (“Seller”) to Cross River Bank (“Lender”) for underwriting of loans for purchase of services from Seller. This Agreement is effective upon its acceptance by Program Manager, as evidenced by Program Manager’s acknowledgement below.
A. Program Manager of Seller Purchase Financing Program (“Program), seeks to facilitate Lender’s making of loans for purchase of services from Seller and, among other functions, provides administrative and technical services to Sellers and Lender.
B. Seller desires to participate in Program in accordance with terms of this Agreement, including procedures and instructions provided to Seller by Program Manager from time to time, to allow Seller’s Customers to apply for and, if approved, obtain Loans from Lender for purchases of services from Seller.
C. Program Manager, acting on behalf of Lender, will administer Program. Lender may offer loans to Seller’s qualified Applicants. Lender will direct terms and conditions under which Loans are extended to Borrower(s).
D. Seller understands that Program Manager is committed to meeting or exceeding all regulatory and documentation requirements that are applicable to Program, that Seller agrees to cooperate fully with helping Program Manager’s instructions to ensure compliance with all such requirements.
WHEREFORE, Seller and Program Manager agree as follows:
For purposes of this Agreement:
(a) “Affiliate” is a person that, directly or indirectly, controls, or is controlled by, or is under common control with, Seller. For purposes of this definition of Affiliate, “control” shall mean possession, direct or indirect, of power to direct or cause direction of management and policies of a person, whether through ownership of voting shares, by contract, or otherwise
(b) “Agreement” is this Seller Program Agreement, as modified or amended as permitted hereby.
(c) “Applicant” is an actual or prospective applicant or co-applicant for a Loan.
(d) “Application” is an application to Lender for a Loan from a potential Borrower.
(e) “Borrower” is an Applicant who has applied for and has been approved for a Loan, and includes all co-Borrowers for Loan.
(f) “Borrower Information” is any personal information about any Applicant or any Borrower received in connection with a Loan, credit application, whether included in a credit application, Loan agreement, or otherwise obtained from Program or other received by Seller in connection with Seller’s participation in Program, including Applicant’s or Borrower’s name, address, social security number, date of birth, income information, and Loan information.
(g) “Business Day” is any day that is not a Saturday, a Sunday or other day on which banks are required or authorized to be closed in the United States.
(h) “Invoice” is evidence (in paper or electronic form) of a sale of Services purchased from Seller by a Borrower, which evidence shall include a description of all Services purchased in detail sufficient to identify date of such transaction and entire amount due for such transaction, including any applicable taxes, and otherwise comply with applicable law related thereto.
(i) “Lender” is Cross River Bank, federally insured financial institutions holding title and/or economic rights to Loans originated through Program.
(j) “Loan” is a loan made by Lender to a Borrower created pursuant to Program, which a Borrower applies for to use to pay for purchases of Services from Seller.
(k) “Loan Agreement” is a written agreement between a Lender and a Borrower containing terms and conditions of a Loan.
(l) “Loan Documents” are Loan Agreement, associated Truth-in-Lending Act disclosures and other documentation and communications from Lender describing rights of Borrower and Program Manager, acting on behalf of Lender, in connection with a Loan.
(m) “Loss” is defined in Section 24(a).
(n) “Person” is an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity.
(o) “Program Manager” is Cherry Technologies, Inc., a Delaware corporation, together with its Affiliates, permitted assignees and permitted designees, acting as Program Manager for Program at direction and under control of Lender.
(p) “ Program” is a lending program administered by Program Manager on behalf of Lender that makes consumer loans to customers of Sellers in connection with their purchases of Services from Seller.
(q) “Reserve Account” is defined in Section 20.
(r) “Restricted Transactions” is defined in Section 4(h).
(s) “Risk Adjustment” is defined in Section 7(c).
(t) “Seller” is the person named as Seller in Application and, for purposes of Section 24(a) with respect to a Seller that is not publicly-traded, shall expressly include all persons who, directly or indirectly, have an ownership interest in Seller (and, by participating in Program, Seller represents and warrants that all authorizations and approvals of any such persons necessary for them to be included in definition of Seller for such purpose have been obtained).
(u) “Seller Indemnified Person” is defined in Section 24(c).
(v) “Services” are any services or associated merchandise that Seller offers, sells or provides or that are offered, sold or provided on behalf of Seller, other than real property, gift cards or any other goods, services or merchandise designated by Program Manager as not eligible for Program. In addition, Goods or Services shall not include any transaction where proceeds of a Loan are used as a down payment on other financings or any cash out or other transaction that results in cash being disbursed to Borrower.
(w) “Transaction Fee” is defined in Section 7(a).
2. Seller’s Obligations and Responsibilities under Program
(a) Seller agrees to:
(i) ensure that all of Seller’s employees, representatives or agents involved with Program are advised of requirements related to the Program to Seller’s customers and that Seller’s employees or agents having sales and finance responsibilities have completed orientation and training related to Program adopted by Lender and provided by Program Manager;
(ii) maintain fair, reasonable and compliant refund and exchange policies, with the understanding that any refund policy which precludes reimbursement for services not rendered is not considered reasonable;
(iii) ensure that refunds and returns are processed within 10 business days of agreed upon request and that any major restriction of limitation is clearly disclosed to customers in one or more documents signed by the customer and that such disclosures appear near the customer signature area of such documents;
(iv) promote Program in a legally-compliant, accurate, complete, unbiased and fair manner;
(v) ensure that Loan proceeds are used only in for approved purpose;
(vi) take commercially reasonable measures to prevent fraudulent activity by an Applicant, Borrower or Seller (including any of its employees, agents or subcontractors) with respect to a credit application, Loan or Loan proceeds, including verifying identification of each individual applying for a Loan;
(vii) Seller shall not require, through a surcharge, an increase in price or otherwise, any Borrower to pay any fees as a consequence of Borrower applying for or using his or her Loan to pay Seller;
(viii) fully cooperate with Program Manager in investigating and remediating Applicant and Borrower escalations, complaints and disputes about Seller and responding within five Business Days, or such shorter time as required by this Agreement or applicable law or governmental authority, to any request for information, audit or review related to Seller’s participation in Program or in connection with resolution of a dispute involving a Borrower or Applicant;
(ix) limit Seller’s discussions with each Borrower and Applicant regarding Program to providing such Borrower or Applicant with approved materials or expressly authorized information, such as accurate information about loan terms or contact information for Program manager;
(x) maintain any information Seller receives regarding each Borrower or Applicant (in such capacities) or Loan as strictly confidential;
(xi) provide to Program Manager in a timely manner all information relating to Seller’s participation in Program and any Borrower and Applicant as set forth herein and otherwise requested by Program Manager or Lender; and
(xii) with respect to any documents or forms provided to, or to be executed by, a Borrower or Applicant or which constitute a disclosure required by Program Manager or under applicable law in connection with Program, only using such documents and forms provided to Seller, or approved in writing, by Program Manager (and only using latest version thereof) and not modifying any such documents or forms without Program Manager’s prior written consent; and
(xiii) if Seller sells any Services for which any state licensing is required, obtain and maintain anyappropriate state-required medical or specialty sales licenses to provide such Services.
(b) In addition to Seller’s other obligations and responsibilities, Seller shall not:
(i) discuss with an Applicant likelihood of approval for a Loan;
(ii) provide any misleading, confusing or incomplete information regarding Program, including applicable interest rates or any terms or conditions of a Loan under Program;
(iii) add any fees (including any Transaction Fee or any interchange/processing fees) to prices charged to Applicants or Borrowers for application for or use of a Loan;
(iv) discriminate among Applicants or Borrowers in any unlawful way;
(v) ask for or accept any document from a Borrower that includes a statement that any Loan has been approved or provided to such Borrower’s satisfaction in advance of actual completion or provision thereof; or
(vi) accept from an Applicant or forward to Program manager any Loan application where Applicant is Seller itself, an employee of Seller, a member of Seller’s family or household, or a family member of any employee of Seller.
(c) In event that Program Manager or a Funding Participant believes Seller has failed to comply with this Agreement, Program Manager may immediately suspend Seller’s participation in Program without notice and take such other action as it deems appropriate, including terminating this Agreement.
3. Loan Terms and Approval
(a) Through Program, Lender may offer Loan(s) to Seller’s qualified Applicants under a Loan Agreement between Lender and such qualified Applicant. As between parties to this Agreement, Program Manager, at direction and under control of Lender, (i) has sole authority to prescribe terms and conditions of credit application, Loan Agreement and each Loan (including interest rate, maximum amount and term); (ii) may prospectively modify such terms and conditions with respect to Loans for which approval is granted subsequent to time of modification; (iii) may at any time change credit standards without notice to Seller; and (iv) may reject and accept credit applications in its sole discretion. A Lender shall not be obligated to take any action with respect to a Loan, including accepting credit application or making future credit available to an Applicant or a Borrower, and has no obligation to approve any particular credit application or Loan or to approve credit applications or Loans meeting any particular set of requirements. A Lender may withdraw any previously issued Loan approval prior to funding of Loan, which Loan approvals, unless earlier withdrawn, shall automatically expire at end of purchase window for applicable credit product. Lender may at any time suspend, and restart, any of Loan products offered in connection with Program.
(b) Except as provided herein, Lender shall own Loans and shall bear credit risk for Loans. Seller acknowledges and agrees that it shall have no ownership interest in Loans.
(a) Seller agrees to submit all credit applications to Program Manager in accordance with this Agreement and Operating Instructions. Seller will use only a credit application form provided or approved by Lender for use in Program.
(b) Seller agrees to provide its employees responsible for sales and finance employees with necessary training and equipment to submit credit applications to Program in accordance with this Agreement and Operating Instructions.
(c) In addition, Seller may, with an Applicant’s prior written consent, (i) submit a completed credit application to Program by such means as are set provided by Program Manager, and (ii) receive and forward Loan Documents to Applicant.
(d) If assisting a patient with their application, Seller shall with respect to each credit application or application information form:
(i) ensure all information requested on such credit application is complete and legible;
(ii) obtain all Applicant signature(s) or e-signature(s), as applicable, on such credit application or application information form or other written authorization to apply;
(iii) verify identification of each individual applying for credit by obtaining a government-issued photo identification document and Social Security number or means as directed by Program Manager identification method authorized in Operating Instructions; and
(iv) provide all other information requested or required by Program Manager.
(e) In event Seller identifies a discrepancy between documents Seller relies on to fulfill its obligation under Section 2(a)(vi) and Applicant’s physical appearance or other application information, Seller shall not submit a credit application to Program from any such Applicant and shall promptly inform Program Manager.
(f) In event that Program Manager makes available to Seller an Internet address for Applicants to submit credit applications to Program for review and processing, it will be an address on a commercial site on World Wide Web portion of Internet accessible by Seller and Applicants. As between parties, Program Manager shall own, manage and maintain such Internet site and retain all right, title and interest in and to such Internet site, and Seller’s only right to such Internet site is to have it made available to Applicants for use in connection with Seller’s participation in Program.
(g) In event that Program Manager provides or makes available any application programming interface (or similar technology) (“APIs”) to or on behalf of Seller in connection with transactions contemplated by this Agreement, Seller’s use of such APIs shall be governed by applicable licensing terms set forth in Operating Instructions (or in such other agreement that Program Manager, in its discretion, enters into with Seller regarding such API’s).
(h) Seller acknowledges and agrees that Restricted Transactions, as defined in Unlawful Internet Gambling Enforcement Act of 2006 and Regulation GG issued thereunder, and all other transactions in nature of gambling are prohibited from being processed through Program. Seller agrees that it will not submit Restricted Transactions for processing through Program. In event Program Manager identifies a suspected Restricted Transaction, Program Manager may, on behalf of Lender, block or otherwise prevent or prohibit such transaction and seek any other remedies available under this Agreement or otherwise.
5. Eligible Sales Transactions.
Once a Loan is approved by a Lender:
(a) Borrower must activate Loan by completing process established by Program Manager. Seller shall not complete activation process on behalf of any Borrower and must ensure Borrower completes activation process only after receiving his or her Loan Documents.
(b) Each Application submitted to Program for processing is subject to Program Manager’s direct verification from Borrower of authorization of such transaction and completion and/or delivery, to Borrower’s satisfaction, of purchased Services, in accordance with applicable Program policies and procedures in effect from time to time. In event that Borrower verification is not obtained, then, in sole discretion of Program Manager, all related transactions may be subject to denial or, if such transactions were previously funded, may be subject to a required refund from or chargeback to Seller, and Program Manager may, in its sole discretion, initiate an ACH debit from Seller’s Account in accordance with Section 13 for any such amounts previously funded.
(c) Upon verification and review of Loan Documents, Lender will fund Loan to Seller.
(d) Seller acknowledges and agrees that Loan fundings due to Seller pursuant to this Agreement may, in sole discretion of Program Manager or Lender, be settled on a net basis, and Program Manager, on its own behalf or on behalf of Lender (as applicable), may, at its option, deduct any amount Seller owes Program Manager or Lender pursuant to this Agreement from any Loan fundings due to Seller. If a transaction authorization is denied, Seller shall not complete the transaction for which authorization was sought and will contact Program’s authorization center as requested.
(e) All Loans made pursuant to this Agreement shall be for personal, family or household purposes unless otherwise authorized in writing by Program Manager.
(f) Loans may only be funded for the purpose of financing approved medical, aesthetic, or cosmetic services
(g) Seller agrees that it will not offer extended product or service warranties and service agreements underwritten by Seller, an Affiliate of Seller or any third party in conjunction with purchases made by Borrowers without prior written approval of Lender, as communicated by Program Manager, of any such warranty or service agreement. If any extended warranty or service agreement is approved, Seller agrees that such extended warranty or service agreement will comply with applicable law, and Seller agrees that it will comply with all obligations under any such extended warranty or service agreement, whether underwritten by Seller, an Affiliate or a third party.
6. Non–Eligible Sales Transactions
Cherry specifically does not support finance of any of the following sales of services:
Product or service training – this includes all trainings related to the delivery of business services
Sales of commercial supplies
Sales of gift cards or prepaid debit cards
(a) For each funded Loan, Seller will pay Program Manager a transaction fee (“Transaction Fee”) in return for access to Program, including access to Program technology platform to allow Seller’s Applicants to apply for Loans from Lender. Program Manager from time to time may modify Transaction Fees and other fees and charges set forth therein, which modifications shall apply to all Loans approved on or after effective date specified in such notice (or, if no effective date is specified, first day of month after which such notice is provided).
(b) The Transaction Fee is paid upon funding of a Loan via a net funding mechanism whereby the funded amount is equal to the transaction amount minus the Transaction Fee
(c) In addition, without limiting any other rights or remedies, Program Manager or a Lender may have under this Agreement or by operation of law, if Program Manager, in its sole discretion, determine that Seller has offered Program as “second-look” financing to any of its customers, thereby violating preferred financing requirements contained in section 8, then Program Manager, in its sole discretion, may increase Transaction Fee (“Risk Adjustment”) for all Loan transactions effective upon written notice to Seller. Program Manager may also assess Seller charges related to Borrower or Applicant disputes with respect to which Program Manager determines Seller is at fault, as well as charges related to chargebacks and refunds.
Program Manager, acting on behalf of Lender, may modify this Agreement by providing written or electronic notice to Seller. Seller’s continued participation in Program for new credit Applications after effective date of any such modification will constitute Seller’s acceptance of modified terms and Seller’s agreement to be bound by them. If Seller does not want to accept such modifications, it must not submit any Applications subsequent to effective date of such modifications and must advise Program Manager in writing of its decision. Notwithstanding foregoing, modifications to this Agreement that are applicable only to Seller individually and not generally to other participants in Program shall not be effective unless provided to Seller in writing and agreed to by Seller, either in writing or by its continued participation in Program.
9. First Look Promotion of Program.
(a) If Seller chooses to participate in Program, Seller agrees to promote Program on a first look basis, but is not required to use Cherry on an exclusive basis. Seller agrees to utilize Program in a commercially reasonable manner and in full compliance with this Agreement, Program Manager’s instructions, and all applicable laws and regulations. Seller is free to use other financing providers, however, the Seller agrees, during the time of this agreement, to make the Program Manager its preferred financing provider. This means that Seller agrees to:
(i) Offer Cherry Technologies Inc.’s financing program first to patients when financing is discussed, asked about, or otherwise considered by patients/customers of the Seller.
(ii) Have Cherry Technologies Inc. prominently featured at the physical location of the Seller as the preferred financing option for the Seller’s customers/patients,
(iii) Have Cherry Technologies Inc. as the preferred and listed first financing provider among finance providers on the Seller’s website and marketing materials,
(iv) Promote Cherry Technologies Inc.’s financing on digital channels used by Seller such as Instagram, Email, Facebook, LinkedIn, Twitter, Yelp, Google, Groupon etc., if Seller advertises financing options on these channels.
10. Cherry Brand Guidelines and Marketing Compliance
Any written material referring or relating to Program, including fact that Seller participates in Program or specific Loan credit terms, shall be prepared or furnished by Program Manager or, if prepared by Seller, must meet all requirements in the “Cherry Brand Guidelines” document provided to Seller. If the material produced is beyond the scope of the “Cherry Brand Guidelines” document, it must be reviewed and approved by Program Manager (in its sole discretion) in advance of being used by Seller. Any such review and approval shall be limited to review and approval of Program-specific representations and statements and shall not be construed as a review or approval of any advertising or solicitation materials for any other purpose or for compliance with any other provisions of any local, state or federal laws not related to Program, notwithstanding any feedback Program Manager may provide that is unrelated to Program.
11. Borrower Payments
Seller agrees that Program Manager, on behalf of, and at direction and under control of, Lender, has sole right to receive payments on Loans. Seller agrees not to attempt to collect a Loan unless specifically authorized in writing by Lender, as communicated by Program Manager. Seller agrees to hold in trust for Lender any payment received by Seller in respect of such Loan and to deliver such payment to Program Manager, acting on behalf of Lender, together with Borrower’s name, Loan number, and any correspondence accompanying payment, within five days of receipt by Seller. Seller agrees that Seller shall be deemed to have endorsed, in favor of Lender to which any such payment relates, any Borrower payments by check, money order or other instrument made payable to Seller that a Borrower presents to Program Manager, and Seller hereby authorizes Program Manager, on behalf of Lender, to supply such necessary endorsements on behalf of Seller. Seller agrees that it shall not, directly or indirectly, make any payment on a Loan on behalf of a Borrower without prior written approval of Program Manager, acting on behalf of Lender, and Program Manager, in its sole discretion, shall have right to immediately (a) suspend Seller’s right to submit new funding transactions on approved Loans or submit new credit applications without notice or (b) terminate this Agreement in event that Seller fails to comply with this provision.
12. Representations and Warranties
(a) As to each Application or other Loan Document or related information presented or delivered in connection with Program, , Seller represents and warrants following: (i) that Seller has verified the identity of Applicant or Borrower and that Applicant or Borrower was of legal age and competent to execute credit application, Loan Agreement, Invoice and transaction authorization at time of execution thereof; (ii) that credit application, Loan Agreement, Invoice and Loan Agreement are bona fide and were actually made and agreed to by each person identified as an Applicant or Borrower; (iii) that each Loan Agreement (A) will arise out of a bona fide sale of Services by Seller and express consent of Borrower, (B) will not involve use of a Loan for any purpose other than for purchase of Services that are subject of the Loan Agreement, which are truly and accurately described therein, are fit and usable for their intended purpose, have been delivered into possession of Borrower and any services so described have been performed, and that all installation and other Services (if applicable) have been completed in a proper manner to Borrower’s complete satisfaction, and (C) represents Seller’s satisfactory performance of all of its other obligations to Borrower in connection with transaction evidenced by such Transaction Request; (iii) that such transaction is, in all respects, in compliance with this Agreement and all laws, rules and regulations of any federal, state or local governmental agency governing same; (iv) that Seller has no knowledge or notice of any fact, event, issue or circumstance that would impair enforceability or collection of Loan as against Borrower; (v) that there are no liens, mortgages, encumbrances or security interests upon the Services;(vi) that there have been no representations or warranties made to Borrower other than warranties approved by Lender, as communicated by Program Manager, or a third party’s or manufacturer’s standard warranties, and in event a manufacturer or third party breaches a standard warranty, Seller will cure such breach within 30 days of notice thereof; (vii) that Seller has not increased the purchase price or added any additional fees as a result of Borrower’s use of Loan to purchase Services; and (viii) that Seller has not taken any adverse action against an Applicant or Borrower because Applicant or Borrower is a member of a protected class, as defined by applicable law, or because Applicant or Borrower has chosen to use credit to finance purchase, nor has Seller engaged in any practice that has or could have an impermissible negative or disparate impact on members of any protected class, including steering Applicants or Borrowers to more expensive or less favorable financing options because of Applicants’ or Borrowers’ membership in a protected class.
(b) Seller represents and warrants that (i) Seller is duly organized, validly existing and in good standing under laws of its jurisdiction of organization and has all requisite power and authority to carry on its business as presently conducted and is duly qualified or licensed to do business and is in good standing (where such concept is recognized under applicable law) in each jurisdiction where nature of its business or ownership or operation of its properties makes such qualification or licensing necessary, (ii) Seller has all requisite power and authority to execute and deliver, and perform its obligations under, this Agreement and to consummate transactions contemplated hereby, (iii) execution, delivery and performance of this Agreement by Seller and consummation by Seller of transactions contemplated hereby have been duly authorized by all necessary action on part of Seller and do not contravene any government or contractual restriction applicable to Seller, (iv) this Agreement has been duly executed and delivered by Seller (by submission of Application) and constitutes a legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms, and (v) information set forth in Application is true and correct in all respects and Seller shall promptly advise Program Manager in writing if any such information changes or otherwise ceases to be accurate.
(c) If Seller offers services to any consumer located in New Jersey, Seller represents and warrants that Seller will comply with New Jersey Consumer Fraud Act (N.J.S.A. 56: 8-1, et seq.). In event Program Manager learns that Seller has failed to comply with this Section 11(c), Program Manager will terminate this Agreement and may seek any other remedies available under this Agreement or otherwise.
(d) Seller represents and warrants that it is in compliance with, and will continue to comply with, all applicable laws, rules and regulations, including those relating to privacy and data security and to its sale of Services, point-of-sale practices and representations made by Seller’s employees and representatives and that Seller has retained and will retain all required licenses, permits, approvals, certifications and like that are required under applicable law to conduct its business, to deliver Services, to participate in Program and to perform its obligations under this Agreement, each of which remains and shall remain in full force and effect, and Seller will promptly notify Program Manager in event that any such license, permit, approval or certification ceases to be in full force and effect or Seller is subjected to sanction by a governmental or regulatory authority. Seller represents and warrants that it will comply with Seller Program Agreement Compliance Addendum attached hereto.
(e) Seller represents and warrants that it will not violate any agreement it has with third parties related to transactions contemplated hereby, including Invoice, and will advise Program Manager promptly of any event that may adversely affect its prospects or continued operations or its ability to satisfy its obligations under outstanding Invoices.
13. Chargebacks and Refunds
(a) Without duplication of any amounts paid by Seller pursuant to Section 24(b), Seller agrees that it will refund on demand, and Program Manager, at direction and under control of Lender, may charge back against Seller, amount of any Loan affected, plus any finance or other charges related to Loan under Borrower’s Loan Documents, in each of following events:
(i) Program Manager or Lender determines that (A) Seller has breached or failed to fulfill any of its obligations under this Agreement, including Program Manager’s instructions, or has breached any of its representations or warranties under this Agreement, or (B) any Loan Agreement, Application, or sale of Services is fraudulent or is subject to any claim of illegality, cancellation, rescission, avoidance or offset, including negligence, fraud, misrepresentation or dishonesty on part of Borrower or Seller, its agents, employees, representatives or franchisees;
(ii) (A) Borrower disputes or denies transaction, execution of transaction authorization, credit application or Loan Agreement, or delivery, quality, or performance of Services purchased or any warranties thereto, (B) Services were not delivered or performed, or (C) Borrower alleges that a credit adjustment to which Borrower was entitled was requested and refused by Seller or that a credit adjustment was issued by Seller but not posted to the Loan due to Seller’s failure to submit the credit adjustment to Program; or
(iii) Borrower asserts any claim or defense against Program Manager or Lender as a result of any act or omission of Seller in violation of any applicable law (other than those that relate solely to terms and conditions of such Loan).
(b) With respect to any chargeback or refund:
(i) Chargebacks or refunds for purchases of Services made by Borrowers through Program that are processed by a third party payment card network may, in discretion of Program Manager, (A) be processed through such payment card network procedures or be satisfied by ACH debits in accordance with Section 14 or (B) be settled on a net basis with other amounts due between Seller, Program Manager and Lender pursuant to this Agreement.
(ii) Chargebacks or refunds for purchases of Services made by Borrowers through Program that are not processed by a third-party payment card network may, in discretion of Program Manager, be processed in a manner generally consistent with original funds transfer or be satisfied by ACH or be settled on a net basis with other amounts due between Seller, Program Manager and Lender pursuant to this Agreement.
(iii) In its reasonable discretion but upon prior notice to Seller, Lender, as communicated by Program Manager, may compromise and settle any claim made by any Borrower if such claim may give Lender a right to chargeback (or a right to a refund) in accordance with this Agreement. Lender, as communicated by Program Manager, may settle such claim in an amount equal to amount paid for disputed Services, not to exceed face amount of any Transaction Request.
(iv) If Lender exercises its right of chargeback (or seeks a refund) in accordance with this Agreement, Lender may set off or recoup amounts charged-back or subject to refund against any sums due to Seller under this Agreement and, if amount of such chargeback or refund exceeds sums due Seller, Lender may demand payment from Seller for such amount (or set off or recoup such amount up to amount of sums due to Seller and demand payment from Seller for such excess amount).
(v) Any chargeback or refund of any Loan amount by Seller shall not affect Seller’s right to recover from Borrower unpaid amount for Services subject to such chargeback or refund, as if financing had not occurred, subject to terms of Invoice and applicable law, although Seller shall have no rights under Loan Agreement or to proceeds of Loan. In such event, Seller shall bear all liability and risk of loss associated with recovering such amounts from Borrower without warranty by, or recourse or liability to, Program Manager or any Lender.
(vi) Program Manager shall promptly notify Seller of all requests by Borrowers for a chargeback or refund. Seller is required to address any dispute or other circumstance described in this Section to the reasonable satisfaction of Lender and to Program Manager, on behalf of Lender, within the time period specified by Program Manager.
(vii) Where a chargeback or refund occurs within 30 days following initial funding and Program Manager determines that such chargeback or refund was not due in any way to Seller’s bad faith, Program Manager will refund to Seller amount of Transaction Fee paid with respect to portion of Loan to which such chargeback or refund relates.
14. Authorization for Automatic Direct Deposits (ACH Credits) and Direct Debits (ACH Debits)
(a) Seller authorizes Program Manager, on behalf of itself and Lender (as applicable), to initiate credit entries for amounts that Program Manager or Lender may owe Seller or that may otherwise be due Seller under this Agreement. Seller authorizes Program Manager (on behalf of itself and Lender) to initiate debit entries, at such times as determined by Program Manager, for (i) any credit entries in error, (ii) Transaction Fees or (iii) any amounts which Seller owes under this Agreement, including Transaction Fees or amounts subject to chargebacks or refund. Such credit and debit entries will be to the bank account identified by Seller (“Seller Account”). Seller and Program Manager acknowledge that origination of ACH transactions described in this Section 13 must comply with applicable law and NACHA rules.
(b) authorizations set forth in Section 13(a) will remain in effect until date on which no Loans remain outstanding. Seller must notify Program Manager within three Business Days of any change to Seller Account for such ACH credits and ACH debits. Program Manager agrees to comply with written notifications from Seller that alter Seller Account information (i.e., name and address of bank or financial institution, transit/routing number or account number) for Seller Account, provided that Program Manager receives such notification in sufficient time and manner to give Program Manager and bank or financial institution reasonable opportunity to act on it.
(c) Seller covenants that it will not object to any ACH debit initiated by Program Manager in accordance with provisions of this Agreement and will not attempt to reverse any such ACH debit. In event that adequate funds are not available in Seller Account to satisfy an ACH debit or an ACH debit is otherwise not able to be completed, (i) Program Manager will be entitled to immediately suspend Seller’s participation in Program without notice and withhold Loan fundings on current and future transactions submitted to Program for processing, and (ii) Seller shall be obligated to immediately pay full amount due pursuant to this Agreement in respect thereof by wire transfer of immediately available funds to the account specified by Program Manager for such payment.
(a) All data transmitted shall be in a medium, form and format designated by Program Manager under Program. Any errors in such data or in its transmission by Seller shall be responsibility of Seller, and any errors in such data or in its transmission by Program Manager shall be responsibility of Program Manager. Electronic transmission shall be exclusive means utilized by Seller for transmission of transaction data to Program except to extent otherwise provided by Program Manager.
(b) Seller shall maintain records of copies of Transaction Requests and Invoices and other records pertaining to any Loan or transaction covered by this Agreement for such time and in such manner as Program Manager, at direction and under control of Lender, or any law or regulation may require, but in no event less than three years from date of credit application or Transaction Request. Within 10 days, or such earlier time as may be required by Program Manager, of receipt of Program Manager’s request, Seller shall provide to Program Manager Borrower’s Invoice or other transaction records or any other documentary evidence available to Seller and reasonably requested by Program Manager (i) to meet its obligations under applicable law or otherwise to respond to questions, complaints, lawsuits, counterclaims or claims concerning Loans or requests from Borrowers or regulatory authorities, (ii) to provide any information in connection with Program Manager’s pursuit, at direction and under control of Lender, of bad debt tax refunds, deductions, credits, or audit offsets (including providing copies of Seller’s state sales and use tax returns), (iii) to ensure Seller’s compliance with this Agreement, or (iv) to enforce any rights a Lender or Program Manager may have against Seller or a Borrower, including litigation by or against Program Manager or such Lender, collection efforts and bankruptcy proceedings, or for any other reason.
(c) Seller agrees to permit Program Manager, at direction and under control of Lender, to examine, upon reasonable notice, Seller’s books and records concerning Seller’s participation in Program or any credit application or transaction giving rise to any Invoice, Transaction Request or Loan and to provide Program Manager, at direction and under control of Lender, with such further information as may reasonably be required concerning Seller’s participation in Program or any credit application or transaction. Seller authorizes Program Manager, at direction and under control of Lender, to obtain credit reports with respect to Seller and, to extent permitted by law, to obtain credit reports individually with respect to all principals, partners or owners of Seller, for purpose of qualifying Seller’s business for participation in Program and for evaluating Seller’s business for continued participation in Program. Seller agrees that it is authorizing Program Manager to obtain credit reports and instructing any consumer reporting agency to provide such report now and in future for purpose of evaluating Seller’s business for future retention and participation in Program.
(d) Seller will provide Program Manager with all original or electronically reproducible copies of documents required to be retained under this Agreement upon request within five Business Days, or such shorter time as required by this Agreement.
16. Operating Instructions
Seller shall satisfy all other requirements designated in any operating directives as may be provided to Seller from time to time by Program Manager, acting on behalf of Lender. The contents of any such operating directives are incorporated by reference into this Agreement. In event there is any inconsistency between any such operating directives and this Agreement, this Agreement shall govern. Program Manager may post such operating directives on the Program website or portal and notify Seller that Seller should review such operating directives, and Seller agrees to do so.
17. Information Security
(b) Seller shall keep confidential and not disclose to any person (except to employees, officers, shareholders, members, partners, directors, managers or representatives of Seller who are engaged in implementation and execution of Program) all information, software, systems and data that Seller receives from Program Manager or from any other source relating to Program and matters that are subject to terms of this Agreement and shall use, and cause to be used, such information solely for purposes of performance of Seller’s obligations under terms of this Agreement.
(c) Program Manager will keep confidential and not disclose to any person (except Lender or employees, officers, shareholders, members, partners, directors, managers, agents or representatives of Program Manager, its subsidiaries, Affiliates or its designees who are engaged in implementation and execution of Program) any information that Program Manager receives from Seller that is designated confidential by Seller. However, nothing in this Agreement shall limit Program Manager’s or Lender’ rights to (i) report information regarding Borrowers to consumer and commercial credit reporting agencies and credit bureaus to extent permitted by Loan Documents and other agreements with Borrower or by applicable law, (ii) share Borrower Information with third-party service providers in ordinary course of business for purposes of administering Program, (iii) disclose Borrower Information or any segment thereof to actual and potential third-party lenders that are bound by customary confidentiality obligations with respect to such data, or (iv) in event a Loan or any part thereof is sold or assigned, disclose any information reasonably necessary or required to effectuate such sale or assignment.
(d) Seller and, on behalf of Lender, Program Manager each agrees that it has developed, implemented and will maintain at all times contemplated by this Agreement effective information security policies and procedures that include administrative, technical and physical safeguards designed to (i) ensure security and confidentiality of Borrower Information, (ii) protect against anticipated threats or hazards to security or integrity of Borrower Information, (iii) protect against unauthorized access or use of Borrower Information, and (iv) ensure proper disposal of Borrower Information. All personnel handling Borrower Information shall be appropriately trained in implementation of such information security policies and procedures. Each party shall regularly audit and review its information security policies and procedures and systems to ensure their continued effectiveness and determine whether adjustments are necessary in light of circumstances, including changes in technology, customer information systems or threats or hazards to Borrower Information.
(e) Seller shall promptly notify Program Manager of any unauthorized access to Borrower Information or any breach in security measures or systems for protection of Borrower Information and take appropriate action to prevent further unauthorized access or cure such breach. Seller shall cooperate with Program Manager with respect to its investigation or inquiry as to any such unauthorized access or breach, provide any notices regarding such unauthorized access or breach to appropriate law enforcement agencies and government regulatory authorities, affected Applicants, Borrowers and customers as Program Manager, at direction and under control of Lender, in its sole discretion, deems appropriate, and pay all expenses related thereto.
(f) Seller agrees that Program Manager, at direction and under control of Lender, may at any time upon notice to Seller, review and audit Seller’s information security policies, procedures and systems to verify their adequacy for protection of Borrower Information. Seller will correct promptly any weakness in such policies, procedures or systems identified by Program Manager in its reviews thereof.
(g) To extent that applicable privacy, data security or other laws require Program Manager or a Lender to comply with requests from Applicants or Borrowers to access, delete, modify, or restrict processing of their personal information (as determined by Program Manager or Lender), Seller agrees to promptly provide such assistance as Program Manager or Lender requests to fulfill such requests.
18. Borrower Complaints
Within five Business Days of receipt, Seller shall provide Program Manager, acting on behalf of, and at direction and under control of, Lender for Loan to which such complaint relates, with a copy of any written complaint or a report of any verbal complaint received from any Borrower or any third party, including any regulatory authority. Seller agrees it will cooperate with Program Manager, acting on behalf of, and at direction and under control of, Lender, in responding to complaints, which cooperation may include providing documents evidencing Applicant or Borrower authorization to submit a credit application or evidencing any other matter related to Seller’s obligations under this Agreement. In addition, Seller agrees to work with Program Manager in good faith to determine whether a Borrower complaint relates to a faulty procedure or defective Services and, if either of these conditions apply to Borrower complaint, Seller shall make all necessary corrections at no cost to Program Manager, Lender or Borrower.
19. Term, Suspension and Termination
(a) This Agreement shall be effective on date of Program Manager’s notice of Seller’s approval to participate in Program and shall remain effective until either party gives other party written notice of its decision to terminate this Agreement. Termination of this Agreement shall not affect rights of either party to recover for breaches occurring (or with respect to matters relating to Loans originated) prior thereto or with respect to provisions of this Agreement that by nature of their terms continue after termination, including Section 24.
(b) In addition to right of termination under this Section 18, Program Manager may immediately suspend Seller’s ability to submit new Loan Applications pursuant to this Agreement, and Program Manager will use commercially reasonable efforts to notify Seller promptly after such suspension. Such suspension will be for so long as Program Manager determines.
(c) Notwithstanding termination of this Agreement, provisions of this Agreement will continue in full force and effect as to all Loans made by Lender under the Program prior to termination. In event that Program Manager has provided any equipment to Seller in connection with Program, Seller agrees to return such equipment to Program Manager upon termination of this Agreement.
(d) In event of breach of this Agreement by either party, the non-breaching party will be entitled to exercise any and all rights and remedies as shall be available to it at law or in equity. non-breaching party may exercise remedies concurrently or separately, and exercise of one remedy will not be deemed either an election of such remedy or a preclusion of right to exercise any other remedy.
20. Reserve Account; Related Matters
If (a) Program Manager, at direction and under control of Lender, determines that (i) Seller’s financial condition has deteriorated or is deemed, in sole discretion of Program Manager, to be unacceptable, (ii) Seller is in breach of this Agreement, (iii) Program has experienced unusual levels of Borrower disputes or complaints from Borrowers or third parties, including regulatory authorities, relating to Seller, or (iv) number of Transaction Requests presented to Program by Seller is substantially different from historical trends, (b) Program Manager becomes aware of some other fact, event or circumstance related to Seller that causes it to believe that a reserve fund is reasonably necessary or advisable, (c) an ACH debit made by Program Manager in accordance with this Agreement is not able to be completed, or (d) a notice of termination has been provided by either party to other in connection with this Agreement, then, and in each such case, (x) Seller will pay to Program Manager, on behalf of Lender, upon demand, or (y) Program Manager may, on behalf of Lender, withhold from any amounts owed Seller in respect of any Transaction Request, or (z) Program Manager may, on behalf of Lender, debit Seller’s Account or withhold funds in an amount Program Manager deems necessary to fund a Reserve Account. Program Manager may charge to such Reserve Account any amount Seller owes Program Manager or Lender or that is otherwise due from Seller under this Agreement. Seller’s obligations to Program Manager and Lender shall not be limited by amount held in Reserve Account. The establishment of a Reserve Account does not excuse Seller from paying any amount that Seller would otherwise owe under this Agreement. Seller shall not be entitled to any interest on amounts held in the Reserve Account. Program Manager will return to Seller any amount remaining in Reserve Account when Program Manager determines a Reserve Account is no longer necessary; provided, however, no refund shall be made later than one year from termination date of this Agreement. In addition, upon occurrence of any of events described in clauses (a), (b) or (c) of first sentence of this Section 19, Program Manager may, on behalf of itself and Lender, impose such limitations on Seller’s participation in Program, or take such other action, as Program Manager deems appropriate.
(a) Seller may not assign this Agreement without prior written consent of Program Manager, acting on behalf of, and at direction and under control of, Lender; any purported assignment without such consent shall be void. Program Manager and Lender may assign this Agreement and any of rights or obligations hereunder at any time. In event of such assignment, assignee thereof shall have same rights and remedies as any assignor under this Agreement, provided that such assignor shall not be relieved of its obligations hereunder arising prior to such assignment unless such assignment is part of an assignment of all or substantially all of its assets and assignee assumes its obligations hereunder. Otherwise, this Agreement is binding upon parties and their successors and assigns.
(b) Seller acknowledges that Program Manager will enter into agreements with Lender to provide financing under Program Loans, and that Lender and/or its assignees own such Loans. Each Lender shall be a third party beneficiary of all obligations of Seller hereunder and shall have the benefit of such obligations and the right to enforce such obligations with respect to any Loan(s).
22. Merger and Integration
Except as specifically stated otherwise herein, this Agreement, together with Operating Instructions, sets forth the entire understanding of Program Manager and Seller relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement and Operating Instructions. This Agreement may not be modified, amended, waived or supplemented except as provided herein. All exhibits, schedules and addendums hereto and any documents or instruments delivered pursuant to any provision hereof are expressly made a part of this Agreement as fully as though completely set forth herein.
23. Seller Obligations Unaffected
Seller’s obligations under this Agreement are not affected by any settlement, extension, forbearance or variation in terms that Program Manager, at direction and under control of Lender, may grant in connection with any Loan or by release of obligations of any Borrower by a court or by operation of law.
24. Indemnification; Related Matters
(a) Seller shall indemnify, defend (at Seller’s sole expense and with counsel reasonably acceptable to Program Manager acting on behalf of, and at direction and under control of, Lender), and hold harmless Program Manager and any Lender (and their respective officers, directors, shareholders, members, partners, managers, employees, representatives and agents) (each a “Program Indemnified Person”) from and against any and all losses, claims, investigations, litigation, proceedings, liabilities, damages, administrative charges and expenses (including attorneys’ fees) of any kind whatsoever (collectively a “Loss”) directly or indirectly arising out of or related to: (i) any breach of any representation, warranty, covenant or other obligation of Seller contained in this Agreement, including Seller Program Agreement Compliance Addendum attached hereto; (ii) any failure of Seller to comply with any applicable federal, state or local law, rule, regulation or ordinance; (iii) any negligence, fraud, error (whether negligent or not), omission or misconduct of Seller, its employees, subcontractors, representatives or agents; (iv) Seller’s failure to perform any of its obligations, or discharge any of its responsibilities, to any person, including failure to pay Transaction Fees when due; (v) any defect in any Services sold or provided by Seller or any breach of any express or implied warranty in connection with such Services; or (vi) any voluntary or involuntary bankruptcy or insolvency proceeding by or against Seller; provided that Seller shall have no obligations or liability under this Section 24(a) to extent a Loss results solely from gross negligence or willful misconduct of a Program Indemnified Person. Seller further agrees to reimburse each Program Indemnified Person upon demand for all legal and other expenses (including expenses related to investigation, settlement, compromise or satisfaction) incurred by any such Program Indemnified Person in connection with any of foregoing.
(b) Seller agrees that if it breaches any representation or warranty herein or if a Borrower asserts any claim or defense (regardless of validity thereof) arising out of any transaction evidenced by any credit application, Loan Agreement, Invoice or Transaction Request or cancels any transaction evidenced by any credit application, Loan Agreement, Invoice or Transaction Request, Seller will refund on demand amount of any Loan affected, plus any finance or other charges related to such Loan. Seller also agrees to indemnify and hold Program Indemnified Persons harmless for any and all breaches of warranties, damages and costs, including attorneys’ fees, which any Program Indemnified Person may sustain as a result of any such event. Program Manager, on its own behalf or on behalf of Lender (as applicable), may, at its option, deduct any amount Seller owes Program Manager or Lender pursuant to this paragraph (b) or any other provision of this Agreement from any amount Program Manager or Lender may owe Seller. Where Seller has reimbursed, indemnified or held Program Indemnified Persons harmless, or where Program Manager, on its own behalf or on behalf of Lender (as applicable), has deducted such amounts from any amount Program Manager or a Lender owes Seller, Seller shall have rights specified in Section 12(b)(v), subject to limitations contained therein.
(c) Program Manager shall indemnify, defend (at Program Manager’s sole expense and with counsel reasonably acceptable to Seller) and hold harmless Seller (and Seller’s officers, directors, shareholders, members, partners, managers, employees and agents) (each a “Seller Indemnified Person”) from and against any Loss directly or indirectly arising out of (i) gross negligence or willful misconduct of Program Manager, or (ii) its failure to comply with terms of this Agreement or any applicable federal, state, or local law, rule, regulation or ordinance; provided that Program Manager shall have no obligations or liability under this Section 24(c) to extent a Loss results solely from gross negligence or willful misconduct of a Seller Indemnified Person.
(d) In event that a Program Indemnified Person or a Seller Indemnified Person shall receive any claim or demand or be subject to any suit or proceeding in connection with which a claim may be made against such person under this Section 24, indemnified party shall give prompt written notice thereof to indemnifying party and indemnifying party will be entitled to participate in settlement or defense thereof; provided that failure to give such notice in a timely manner shall not impact availability of indemnification except to extent that it materially and adversely impacts defense of any such claim or demand. In any case, indemnifying party and indemnified party shall cooperate (at no cost to indemnified party) in settlement or defense of any such claim, demand, suit or proceeding.
(e) In event and for so long as any Program Indemnified Person actively is contesting or defending against any action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand in connection with (i) any transaction contemplated under this Agreement or (ii) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction involving Seller or any Applicant, Borrower or customer of Seller, Seller will cooperate with such Program Indemnified Person and its counsel with respect thereto, make available any personnel under its control, and provide such testimony and access to its books and records, including allowing copies to be made by such Program Indemnified Person or its representatives, as shall be reasonably necessary in connection therewith, all at sole cost and expense of Seller.
25. Nonwaiver and Extensions
The parties hereto shall not by any act, delay, omission or otherwise be deemed to have waived any rights or remedies hereunder. Each party agrees that other party’s failure to enforce any of its rights under this Agreement shall not affect any other right or same right in any other instance.
26. Ownership of the Program
Neither Seller nor any parent, subsidiary or other Affiliate of Seller shall by virtue of this Agreement secure any title to or other ownership interest in any elements of Program, including operating directives, written specifications, training materials, programs, systems, screens or any documentation or materials relating thereto, which are Program Manager’s or any Lender’s exclusive property. Seller agrees to use elements of the Program and information about Program only for purpose of enabling Seller to use Program provided under this Agreement and for no other purpose.
27. Rights of Persons Not a Party
Except as expressly provided herein, this Agreement shall not create any rights on part of any person not a party hereto, whether as a third party beneficiary or otherwise; provided however, that Lender shall have the right to enforce this Agreement fully as against Seller.
28. Governing Law; Severability
This Agreement shall be governed by and construed in accordance with laws of State of California without reference to its conflict of laws provisions. If any provision of this Agreement is found to be illegal, unenforceable or contrary to applicable law, such provision shall be deemed ineffective without invalidating remaining provisions hereof and this Agreement may be reformed giving effect to greatest extent possible to intentions of parties as reflected by ineffective provision.
29. Independent Contractor
This Agreement does not (and shall not be construed to) establish a partnership, joint venture, agency relationship or other form of business association between Seller and Program Manager or any Lender. Program Manager and Seller are independent contractors, and neither party shall have authority to speak for, commit or bind other party, except insofar as Program Manager acts as an authorized agent for Lender.
30. Actions of Employees
For all purposes, including, but not limited to, provisions of Section 24, each party is responsible for actions of its employees. In event employment of an employee is terminated, party that employed such former employee will take reasonable steps to ensure that such former employee no longer has access to Program systems (including changing any passwords necessary to access such information or system or any confidential information relating to, or arising from, Program).
(a) Any notices which may or shall be given hereunder shall be in writing and shall either (1) be delivered to the party for whom intended; or (2) sent by registered, certified mail, postage prepaid, or by overnight express courier service, with return receipt requested to the address of such party or to such other address provided by notice. Such notices shall be effective upon receipt, except for e-mail notices, which shall be effective upon receipt by the party sending the e-mail of a specific confirmation of receipt by return e-mail from the party to whom the e-mail notice was directed.
(b) All notices to Program Manager and Lender hereunder shall be sent to the address set forth below or to such other address or e-mail address as Program Manager may advise Seller in writing:
(c) Notices to Seller shall be sent to Seller’s postal or street address, or e-mail address set forth above or such other address, or e-mail address as Seller may advise Program Manager in writing.
This Agreement is executed through Seller’s submission of Application, which is an enforceable electronic signature of Seller, and shall be deemed an original. Modification to this Agreement shall be adopted in manner described in Section 8.
Seller hereby grants Program Manager, on behalf of itself and Lender, a nonexclusive license to use its name, trademarks, logos and other marks in connection with administration and operation of Program during and after term of this Agreement.
34. Press Release
Seller agrees not to issue any announcement concerning Program or Seller’s relationship with Program Manager or any Lender in a press release or other similar communication to general public without Program Manager’s prior written consent.
35. Call Monitoring
With respect to any calls Program Manager may make to Seller or Seller may make to Program Manager, Seller acknowledges that such calls may be monitored or recorded by Program Manager for quality assurance or other purposes.
36. DAMAGES; ATTORNEYS’ FEES
SELLER SHALL BE LIABLE TO PROGRAM-INDEMNIFIED PERSONS FOR ALL DAMAGES UNDER APPLICABLE LAW AND COSTS INCURRED IN ANY COLLECTION ACTION OR OTHER LEGAL PROCEEDING ANY PROGRAM INDEMNIFIED PERSON MAY BRING AGAINST SELLER (INCLUDING ATTORNEYS’ FEES, COURT COSTS, INTEREST, FILING FEES AND OTHER EXPENSES OF ANY KIND WHATSOEVER). TO MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY CHERRY INDEMNIFIED PERSON BE LIABLE TO SELLER OR ANY OTHER PERSON FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR COVER DAMAGES, INCLUDING LOSS OF PROFIT, LOSS OF PERSONAL PROPERTY, OR ANY OTHER SIMILAR DAMAGE OR LOSS.
37. JURISDICTION AND VENUE
ANY SUIT, COUNTERCLAIM, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATED DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, MUST BE BROUGHT BY EITHER PARTY EXCLUSIVELY IN THE SUPERIOR COURT OF SAN FRANCISCO, CALIFORNIA, OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND THE PARTIES HEREBY IRREVOCABLY SUBMIT TO EXCLUSIVE JURISDICTION OF SUCH COURTS AND ANY APPELLATE COURTS THEREOF FOR PURPOSE OF ANY SUCH SUIT, COUNTERCLAIM, ACTION OR PROCEEDING OR JUDGMENT THEREON (IT BEING UNDERSTOOD THAT SUCH CONSENT TO EXCLUSIVE JURISDICTION OF SUCH COURTS WAIVES ANY RIGHT TO SUBMIT ANY DISPUTES HEREUNDER TO ANY COURTS OTHER THAN THOSE ABOVE).
38. Further Assurances
Each party hereto agrees to execute all such additional documents and instruments and to do all such further things as other party hereto may reasonably request in order to give effect to and consummate transactions contemplated hereby.
(a) For purposes of this Agreement, whenever context requires: singular number includes plural, and vice versa; masculine gender includes feminine and neuter genders; feminine gender includes masculine and neuter genders; and neuter gender includes masculine and feminine genders.
(b) The parties hereto have participated jointly in negotiation and drafting of this Agreement and, in event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any provision of this Agreement.
(c) As used in this Agreement, words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by word “without limitation.”
(d) Except as otherwise indicated, all references in this Agreement to “Sections,” “Exhibits” and “Schedules” are intended to refer to Sections of this Agreement and Exhibits or Schedules to this Agreement.
(e) All terms defined in this Agreement shall have defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein.
(f) Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in case of agreements or instruments) by waiver or consent and (in case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.
(g) The word “or”, when used in this Agreement, is not exclusive.