Dinemarket Pay Seller Agreement
Dinemarket Pay Seller Commission Agreement
This Dinemarket Pay Commission Agreement (this “Agreement”) is by and between Dine Market, Inc. (“Dinemarket”) and a Merchant (“Merchant”) (each a “Party”, and together the “Parties”). This Agreement is effective once it has been executed or accepted by Merchant.
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING ANY PART OF THE DINEMARKET PAY SERVICE, MERCHANT ACKNOWLEDGES THAT MERCHANT HAS READ THIS AGREEMENT, THAT MERCHANT UNDERSTANDS IT AND ITS TERMS AND CONDITIONS, AND THAT MERCHANT AGREES TO BE BOUND LEGALLY BY IT AND ITS TERMS AND CONDITIONS. IF MERCHANT DOES NOT AGREE WITH THIS AGREEMENT, MERCHANT IS NOT GRANTED PERMISSION BY US TO ACCESS OR OTHERWISE USE THE DINEMARKET PAY SERVICE.
Please note that Section 8 of this Agreement includes provisions that govern how claims the Parties may have against each other will be resolved. These provisions limit Dinemarketʼs liability and require individual arbitration for any dispute that Merchant asserts against Dinemarket. This Agreement also includes important terms regarding Merchant’s rights related to fees, dispute resolution and governing law.
WHEREAS, Dinemarket is willing to support Merchantʼs sales to its business customers (the “Customers”), by purchasing outstanding invoices owing and payable to Merchant by Customers for the purchase goods or services from Merchant.
WHEREAS, Merchant is willing to pay Dinemarket a fee or commission equal to the dollar amount as it appears in the Merchant dashboard on the Site (as defined below) at the time of the payment acceptance (the “Compensation”) for each of Merchantʼs invoices or other account receivables that are purchased by Dinemarket.
NOW THEREFORE, in consideration of the mutual covenants and obligations set forth in this Agreement, the Parties agree as follows:
2. Individual Transactions. Unless Merchant and Dinemarket agree otherwise, Dinemarket, in its sole discretion, may purchase the Merchantʼs invoice or other account receivables (collectively, “Invoices”) for any individual transaction on the price and other terms set forth on the Site. For the avoidance of doubt, Dinemarket may decline to purchase certain Invoices in its sole discretion.
3. Nature of Transaction. Merchant, as a seller, and Dinemarket, as a buyer, intend that each purchase and sale of all right, title and interest to Invoices under this Agreement is and shall be a true sale of such Invoices (and the amounts due thereunder) for all purposes and not a loan arrangement. Each such sale shall be, subject to the terms of this Agreement, absolute and irrevocable, providing Dinemarket with the full risks and benefits of ownership of such Invoices (such that the amounts payable under such Invoices would not be property of Merchant’s estate in the event of your bankruptcy). Merchant, as a seller, and Dinemarket, as a buyer, agree to treat each transfer of an Invoice for all purposes as a sale on all relevant books, records, financial statements and other applicable documents. In the event that, notwithstanding Merchant’s and Dinemarket’s mutual intent, the transfer and assignment contemplated under this Agreement is not held to be a sale, Merchant hereby grants Dinemarket a security interest in each Invoice transferred hereunder.
Dinemarket will assume the Credit Risk on each purchased Invoice, and Dinemarket will have no recourse to Merchant if any purchased Invoice is not collected due solely to the occurrence of an event of assumed Credit Risk occurring, as to any invoice. For this purpose, “Credit Risk” means: the (i) Customer’s bankruptcy; (ii) appointment of a receiver over all or any part of the assets of Customer; (iii) sale of assets of Customer under a writ of execution or if a writ of attachment or execution shall have been returned unsatisfied, (iv) Customer shall have absconded; (v) Customer’s assets shall have been sold under levy by any taxing authority or landlord; or (vi) Customer is otherwise financially unable to pay on the applicable Invoice.
MERCHANT FURTHER ACKNOWLEDGES AND AGREES THAT ANY FAILURE ON THE PART OF A CUSTOMER TO HONOR ITS OBLIGATIONS TO MERCHANT, INCLUDING WITH RESPECT TO ANY DISPUTE RELATED TO DELIVERY OF CONTRACTED-FOR GOODS AND SERVICES, SHALL NOT BE A DEFENSE TO MERCHANT’S OBLIGATIONS TO MAKE COMPENSATION PAYMENTS DUE AND OWING TO DINEMARKET UNDER THIS AGREEMENT.
4. Fees and Commission. Merchant shall pay Dinemarket the Compensation for each Invoice Dinemarket purchases. For administrative ease, Merchant authorizes Dinemarket to retain that portion of the amount owing under such Invoices or other account receivable equivalent to the Compensation. Merchant and Dinemarket acknowledge and agree that: (i) the Compensation to be paid to Dinemarket hereunder represents an armʼs-length transaction and fair compensation to Dinemarket for arranging prompt payment of the applicable outstanding invoices or other amounts owed by Customer to Merchant; and (ii) Merchant shall not be entitled to seek a refund for any Compensation paid to Dinemarket in the event that a Customer seeks any recourse against Merchant, including, without limitation, arising from any defect or other disagreement regarding the goods or services Merchant provided to Customer.
5. Compliance with Laws and Regulations. Each Party shall be responsible for compliance with all applicable federal, state and local laws and regulations, including all applicable licensing and loan brokering requirements (together “Applicable Requirements”). To the extent that either Party fails to comply with Applicable Requirements, it shall indemnify, defend and hold harmless the other Party from any damages resulting from the violation.
6. Confidentiality; No Advertisement. Each of Dinemarket and Merchant agree to keep confidential any information either may acquire as a result of this Agreement regarding the business and affairs of the other, including, without limitation, information regarding the Customers business arrangements with Dinemarket and Merchant. Neither Party shall, without the prior written consent of the other Party, place any advertisement in any media whatsoever or, except as provided herein, make any written communication addressed to any potential merchant, potential client or other third party if such advertisement or communication in any manner makes reference to the other Party. Notwithstanding the foregoing, Dinemarket shall be permitted to identify Merchant in marketing materials and directories listing Merchants that use the Dinemarket Pay service.
7. Termination. This Agreement may be terminated by either Party for any reason and at any time, by written notice given to the other Party. Any such termination shall have no effect on the rights and obligations of the Parties in respect of Compensation earned prior to such termination.
8. Additional Provisions.
(a) No Assignment. Merchant may not assign, delegate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of Dinemarket. Any purported assignment, delegation or transfer by Merchant in violation of the previous sentence shall be automatically deemed null and void. Subject to the foregoing, all provisions contained in this Agreement or any document or agreement referred to in this Agreement or relating to this Agreement shall inure to the benefit of Dinemarket, its successors and assigns, and shall be binding upon Merchant, its successors and assigns.
(b) Business Purpose; Compliance with Laws. Merchant represents that it is a valid business in good standing under the laws of the jurisdictions in which it is organized and/or operates, and that it is entering into this Agreement for business purposes and not as a consumer for personal, family or household purposes.
(c) Unencumbered Receipts. Merchant has good, complete and marketable title to all Invoices, free and clear of any and all liabilities, liens, claims, charges, restrictions, conditions, options, rights, mortgages, security interests, equities, pledges and encumbrances of any kind or nature whatsoever or any other rights or interests that may be inconsistent with the transactions contemplated by this Agreement, or adverse to the interests of Dinemarket.
(e) Amendment; No Waiver. This Agreement may only be amended by a writing signed by the Parties, or by an electronic record that has been electronically signed by the Parties and has been rendered tamper-evident as part of the signing process. The exchange of email or other electronic communications discussing an amendment to this Agreement, even if such communications are signed, does not constitute a signed electronic record agreeing to such an amendment. No delay or failure by Dinemarket to exercise any right, power, or remedy shall constitute a waiver thereof by Dinemarket, and no single or partial exercise by Dinemarket of any right, power, or remedy shall preclude other or further exercise thereof or any exercise of any other rights, powers, or remedies.
(f) Cumulative Rights. The rights, powers, and remedies of Dinemarket under this Agreement are cumulative and in addition to all rights, powers, and remedies provided under any and all agreements between the Merchant and Dinemarket relating to this Agreement, at law, in equity or otherwise.
(g) Entire Agreement. This Agreement and the documents and agreements referred to in this Agreement embody the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings relating to the same or similar subject matter.
(h) Notices. All notices required under this Agreement and other information concerning this Agreement (“Communications”) shall be personally delivered or sent by first class mail, postage prepaid, by overnight courier. In addition, Dinemarket may, in its sole discretion, send such Communications to Merchant electronically in the manner described in this Section. Such Communications sent by personal delivery, mail or overnight courier will be sent to the addresses on the signature page of this Agreement, or to such other addresses as Dinemarket and the Merchant may specify from time to time in writing. Communications shall be effective: (i) if mailed, upon the earlier of receipt or five (5) days after deposit in the U.S. mail, first class, postage prepaid; or (ii) if hand-delivered, by courier or otherwise (including telegram, lettergram or mailgram), when delivered. Such Communications may be sent electronically by Dinemarket to Merchant: (1) by transmitting the Communication to the electronic address provided by Merchant or to such other electronic address as the Merchant may specify from time to time in writing or via the Merchant Dashboard on the Site; or (2) by posting the Communication on a website and sending Merchant a notice to Merchantʼs postal address or electronic address telling the Merchant that the Communication has been posted, its location, and providing instructions on how to view it. Communications sent electronically to Merchant will be effective when the Communication, or a notice advising of its posting to a website, is sent to Merchantʼs electronic address.
(i) Governing Law; No Jury Trial; Exclusive Venue and Jurisdiction.
(i) Any Dispute will be resolved in accordance with the arbitration agreement set forth in this Section 8(i). As used in this Agreement, “Dispute” means any claim, controversy, or dispute of any kind whatsoever (whether involving contract, tort, equitable, statutory, or any other legal theory) that Merchant asserts against Dinemarket relating to this Agreement (including its formation, validity, performance, construction, interpretation, or termination). For avoidance of doubt, “Dispute” also includes any claim, controversy, or dispute of Merchant arising out of or relating to the “making” (9 U.SC. § 4), existence, validity, enforcement, of the agreement to arbitrate, or to the arbitrability of any Dispute (including any defenses to arbitrability), any other aspect of the relationship between Merchant and Dinemarket, Dinemarket advertising, and any use of Dinemarket software or services and extends to and includes claims Merchant asserts against Dinemarket that arose before the existence of this Agreement and Merchantʼs claims arising out of or relating to this Agreement that arise after termination of this Agreement. Merchant acknowledges and agrees that the arbitration agreement set forth in this Section 8(i) survives termination of this Agreement to the extent provided herein. Any claim, controversy, or dispute asserted by Dinemarket against Merchant shall be subject to arbitration at Dinemarketʼs election. Merchant agrees to pay all collection expenses, court costs, and reasonable attorney fees and disbursements (whether or not litigation is commenced) of Dinemarket that may be incurred in connection with the collection or enforcement of all or any part of the Obligations.
(ii) This Agreement shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. Merchant acknowledges and agrees that this Agreement is a contract evidencing a transaction involving commerce within the meaning of the FAA. The governing law for any and all Disputes shall be the laws of the State of where Merchant is domiciled, without regard to its choice of law or conflict of laws principles. Merchant and Dinemarket each agree to arbitrate all Disputes. ANY DISPUTE WILL BE DECIDED IN ARBITRATION BY AN ARBITRATOR ONLY ON AN INDIVIDUAL BASIS WITHOUT A JUDGE OR JURY; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTYʼS INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER MERCHANTS OR USERS OF DINEMARKETʼS SERVICES.
(iii) All Disputes shall be resolved by a single arbitrator administered by the AAA under its Commercial Arbitration Rules. The AAAʼs rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAAʼs website at http://www.adr.org. Any arbitration hearing will occur in New York, New York. If the value of the relief sought is $10,000 or less, Merchant or Dinemarket may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on Merchant and Dinemarket subject to the arbitratorʼs discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by Merchant and/or Dinemarket, unless the arbitrator requires otherwise. The arbitrator shall not be bound by rulings in prior arbitrations involving different Merchants or users of Dinemarketʼs services. The arbitratorʼs award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. For purposes of this arbitration provision, references to Merchant and Dinemarket also include their respective affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of Dinemarketʼs services. Subject to and without waiver of the arbitration provisions above, Merchant agrees that any judicial proceedings will be brought in, and Merchant hereby consents to, the non-exclusive jurisdiction and venue in the state courts in the County of New York, New York or federal court for the District of New York City.
(iv) Arbitration with respect to any Dispute must be commenced within one (1) year after the Dispute accrues as determined by reference to the rule of decision governing the Dispute. If the arbitration is not timely commenced, both the right of action and the remedy are barred. Without waiving or limiting the foregoing, to the extent any Dispute is adjudged non-arbitrable, the one- (1-) year limitation also shall apply to the commencement of any judicial proceeding.
(j) Electronic Documents; Counterparts. Electronic records and signatures may be used in connection with the execution of this Agreement, in Dinemarketʼs discretion. This Agreement may be executed in as many counterparts as necessary or convenient, including both counterparts that are executed on paper and counterparts that are electronic records and executed electronically, and by the different parties on separate counterparts each of which, when so executed, (and any copy of an executed counterpart that is an electronic record) shall be deemed an original but all such counterparts shall constitute but one and the same document. Delivery of a manually executed paper counterpart of this Agreement (or of any other agreement or document required by this Agreement and any amendment to this Agreement) by telecopy or other electronic imaging means shall be as effective as delivery of such manually executed paper counterpart; provided, however, that the telecopy or other electronic image shall be promptly followed by a manually executed paper original if required by Dinemarket.
(k) Setoff. In addition to any rights and remedies of Dinemarket provided by law, Dinemarket is authorized at any time and from time to time, without prior notice to the Merchant, any such notice being waived by the Merchant to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing to, Dinemarket to or for the credit or the account of the Merchant against any and all obligations owing to Dinemarket, now or hereafter existing, irrespective of whether or not Dinemarket shall have made demand under this Agreement and although such obligations may be contingent or unmatured. Dinemarket agrees promptly to notify the Merchant after any such setoff and application made by Dinemarket; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application.
(l) Payments Set Aside. To the extent that the Merchant makes a payment or payments to Dinemarket or Dinemarket exercises its rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Dinemarket in its discretion) to be repaid to a trustee, receiver, or any other party in connection with any insolvency proceeding, or otherwise, then to the extent of such recovery the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
(m) Severability. The illegality or unenforceability of any provision of this Agreement or any instrument or agreement required under this Agreement shall not in any way affect or impair the legality or enforceability of the remaining provisions hereof or thereof.
(n) No Third Parties Benefited. This Agreement is made and entered into for the sole protection and legal benefit of the Merchant and Dinemarket, and their permitted successors and assigns, and no other person or entity shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement. Dinemarket has no obligation to any person or entity not a party to this Agreement.