Client Agreement:
This Client Agreement (the “Agreement”), dated ("Today's Date") is between ("Company"), a ("State of Incorporation") (“Client”), and Custom Financing Solutions LLC, a Delaware limited liability company (“CustomFin”). This Agreement sometimes refers to Client and CustomFin collectively as the “Parties” or individually as a “Party.” BACKGROUND: Client provides services (the “Services”) to consumers. A consumer (“Customer”) intending to purchase Services from a seller (“Seller”) of the Services, like Client (a “Purchase”), may desire to finance that Purchase through Financing sources that provide financing to consumers for those types of Purchases (each, a “Financier”). CustomFin makes available to consumers a web-based software application (the “App”) that allows consumers to submit applications (each, an “Application”) to Financiers to request financing for a Purchase and allows the Customer or his/her Seller to upload other related information (the “Information”) to Financiers so the Financiers may determine whether to provide the requested financing to those consumers. Client desires to be an authorized Seller on the App, permitting Client’s employees and other representatives (collectively, “Client’s Representatives”) to use the App with their Customers, and CustomFin desires to include Client as an authorized seller of Services on the App, in each case allowing Client’s Representatives to transmit links to the App to Customers seeking financing to finance a Purchase (“Links”) and other benefits, in each case on the terms set forth herein. In consideration of the mutual covenants and agreements herein, Client and CustomFin agree as follows: 1. Agreement to be Seller. (a) CustomFin approves Client as a Seller under the App in accordance with the terms herein, and Client agrees to be a Seller on the App, and to encourage Client’s Representatives to use the App by transmitting Links to Customers seeking financing (a “Loan”) for a Purchase. When Client has a Customer looking to make a Purchase, Client may input the amount Client desires to make on that Purchase into CustomFin’ pricing engine. That pricing engine will determine the amount Client will need to charge to obtain the desired gross profit. Notwithstanding anything to the contrary herein, Client alone shall determine the price at which Client charges a customer for Services and CustomFin has no input into that decision. Once the Customer has shown an interest in financing a Purchase, Client may start an Application by entering the Customer’s name, the price for the Services (the “Purchase Price”), the amount to be financed and the other information required by App to start the process. Then, Client shall send the Link to the Application to the Customer so that Customer may finish it, including inputting its personally protected information and other Information. Once completed, the Customer submits the Application through the App to Financiers (the “Interested Financier”) that have shown an interest in making Loans to borrowers meeting similar financial characteristics as the Customer. The date on which a Customer’s Application for a Loan is submitted to Interested Financiers through the App is that Customer’s “Application Date” for that Loan. Those Interested Financiers reviewing the Customer’s Application and the Customer may communicate directly either through the App or through another method agreed to by each Interested Financier and the Customer. Each Interested Financier will review the Application and related Information, and, if it elects, in its sole discretion, to make the requested Loan, that Interested Financier will promptly provide the Customer with an offer to provide the requested Loan and the conditions to obtaining the Loan. The Customer may elect to accept such offer in its sole and absolute discretion. If a Customer accepts through the App an offer from an Interested Financier to make a Loan to finance a Purchase, Client will receive notice of that acceptance through the App (“Acceptance Notification”). (b) CustomFin will provide Client and Client’s Representatives with the information and instructions necessary to allow them to access the App, transmit Links, input Applications and related Information, monitor the status of Applications from Customers and other benefits hereunder. The cost of this service is set forth on the attached Exhibit A (“Onboarding Fee”) and it, together with any thirty-party hard costs incurred by Client in connection with such onboarding (with Client’s consent), shall be due and payable on the Commencement Date (defined below). (c) CustomFin may have various financing packages available from various Financiers from time to time offering various loan terms, interest rates (or no interest financing), payment requirements and other terms (the “Financier Terms”), which Financier Terms may change from time to time, as determined by the applicable Financiers in their sole discretion. Under certain Financier Terms, Client may have to participate in that financing by accepting discounts on the amount financed (each, a “Discount”). For instance, if the Financier provides payments under a 12-month same as cash payment term, Client may have to accept a discount on the amount financed in an amount equal to up to the Maximum Discount Amount set forth on the attached Exhibit A. 2. Security. Access to the App will be provided through use of a user name, password and other device to verify the Client and the Client’s Representatives it authorizes to, on its behalf, access and use the services provided by the App (“Access Credentials”). As such, Client is solely responsible for (a) the security and use of the Access Credentials; and (b) all access to and use of the App by anyone using the Access Credentials, even if without Client’s knowledge or consent. Client shall prevent the Client’s Representatives from sharing his/her Access Credentials with each other and other employees, representatives or other third parties. 3. Terms of Use. To use the App, each of Client’s Representatives must also sign on to the App and agree to the App’s terms of use (the “T&Cs”), which govern use of the App by the Client’s Representatives. Client shall cause each of the Client’s Representatives to use the App in accordance with the terms of the T&Cs. 4. Funding. If a Financier agrees to fund a Loan to a Customer to finance that Customer’s Purchase from Client (“Closed Transaction”), Client can expect to receive the Purchase Price, less any Discount referred to above and any other fees and cost of the Financier or CustomFin that are to be paid by the Client under the Financier Terms, within forty-eight (48) hours after the Services financed in such Closed Transaction have been provided. Client shall only be entitled to receive funding after Services are rendered and considered complete and satisfactory by the Customer; If Client collected funds without such approval, such funds shall be subject to immediate return and chargeback. For purposes of a Closed Transaction, a Loan shall be deemed closed when Financier or any other closing agent for that Loan funds the Loan, unless such policies are violated. 5. Compensation/Payment. To participate as a Seller under the App, Client shall pay to CustomFin the monthly fees set forth on the attached Exhibit A (the “Fees and Costs“). Client shall owe to CustomFin any and all fees as set forth in Exhibit A, and such fees are earned and owed immediately when due. Client agrees that all fees will automatically be debited and/or charged using Client’s provided payment method(s). Amounts not paid when due hereunder shall accrue interest at a rate equal to the lesser of one and one-half percent (1 1/2%) per month or the maximum monthly rate of interest permitted under applicable law, until paid in full, which interest shall be paid by Client upon its receipt of CustomFin’ written demand for same. 6. Term. (a) The initial term of this Agreement shall commence on the date (a) this Agreement has been executed and delivered by Client to CustomFin, and (b) CustomFin has executed and delivered a fully-executed copy of this Agreement to Client (the “Commencement Date”), and shall continue thereafter until the closing of business on the day prior to the first (1st) year anniversary of the Commencement Date (the “Initial Term”). Upon the expiration of the Initial Term and each Renewal Term (defined below), the term of this Agreement shall automatically extend for a period of one (1) additional year (each, a “Renewal Term”) unless either Party, by providing the other Party with at least six (6) months’ prior written notice of same, terminates this Agreement effective upon the last day of the then-current Initial Term or Renewal Term (the Initial Term and each Renewal Term hereunder, the “Term”). Notwithstanding the foregoing, (a) either Party (the “non-defaulting party”) may terminate this Agreement at any time upon written notice to the other Party (the “defaulting party”) if the defaulting party fails to comply with any of its obligations under this Agreement and that failure continues for ten (10) days after defaulting party’s receipt of notice of same. (b) (b) Immediately following termination of this Agreement, each Party shall cease all display, advertising and use of the other party’s trademarks, trade names and other intellectual property, CustomFin may terminate all Access Credentials unless there are any Applications or Loans still under consideration or not funded. Promptly following termination of this Agreement, each party shall return all materials in its possession in connection with this Agreement that disclose or embody Confidential Information (as hereinafter defined) of the other, or, at the option of the Disclosing party, destroy all such materials and certify in writing that all such Confidential Information has been destroyed. The Parties shall cooperate to disable and disconnect any links one may have to the other’s Internet web page within 10 days after the termination of this Agreement. Those provisions set forth to survive the termination of this Agreement in Section 10(f), shall survive the termination of this Agreement. 7. Confidentiality. Except for disclosures that are required to be made under law or in connection with any dispute between the Parties and to its advisors who have a need to know same, no Party (as such, “Recipient”) will disclose or use, and will direct its representatives not to disclose or use, any Confidential Information (as defined below) of the other Party (“Disclosing Party”) for any reason other than in performance of its duties under this Agreement and Recipient agrees to protect Disclosing Party’s Confidential Information by using the same degree of care it uses to protect its own confidential information. As used herein, "Confidential Information" means Disclosing Party’s information (a) that is not generally known or ascertainable (that is, secret), (b) from which Disclosing Party derives economic value or business advantage by keeping the information secret, and (c) for which Disclosing Party takes reasonable efforts to preserve its secrecy including the terms of this Agreement and CustomFin’ list of Financiers, which are all CustomFin’ Confidential Information unless, with respect to any Financier, Client has a pre-existing relationship with such Financier, as shown in its books or records. Upon Disclosing Party’s written request, Recipient will promptly return to Disclosing Party or destroy Disclosing Party’s Confidential Information in its possession and certify in writing to Disclosing Party that it has done so. 8. Non-Solicitation; Non-Circumvention. Client shall not solicit, service, contact or attempt to contact, and Client shall prevent Client’s Representatives from soliciting, servicing, contacting or attempting to contact, in both cases, either directly or indirectly, during Term and the twelve (12) month period following its termination (whether terminated for cause, without cause, or by either Party) (the “Restriction Period”), any Financier with which the Client did not have a relationship prior to its interactions with such Financier as part of any Loan process, for purposes of assisting a Customer in obtaining a Loan through such Financier outside the App. Client shall provide CustomFin with prompt notice if any Financier attempts to circumvent CustomFin in any manner during the Restriction Period. Additionally, during the Restriction Period, Client shall not seek, and shall prevent the Client Representatives from seeking, in each case, whether directly, indirectly or in any other manner, to bypass, compete with, avoid, or circumvent CustomFin, its business, the App or CustomFin’ rights under this Agreement by causing any Customer to obtain a Loan directly from a Financier with which the Client did not have a relationship prior to its interactions with such Financier as part of any Loan process. 9. Indemnification. Each Party (as such, “Indemnifying Party”) shall, upon demand, indemnify, defend and hold harmless the other Party, its affiliates and their officers, directors, managers, employees and other representatives (collectively, the “Indemnitees”) from and against all proceedings, investigations, suits, claims, liabilities, damages, penalties, judgments and costs (including reasonable attorneys’ and paralegal fees incurred pre-proceeding, during the proceeding, on appeal or in bankruptcy) (collectively, “Losses”) resulting from Indemnifying Party’s (a) breach of a representation, warranty, covenant or agreement under this Agreement, (b) actions in performing or providing Services or its services under this Agreement, or (c) use or creation of the App. Notwithstanding the foregoing, Indemnifying Party is not obligated to provide indemnification under this Section to the extent the Losses result from the Indemnitee’s (i) material breach of a representation, warranty, covenant or agreement under this Agreement, or (ii) gross negligence or willful misconduct. 10. Miscellaneous. (a) Notices. Any notices required by or to be sent hereunder shall be addressed to the address of the Party set forth on the signature page, and shall be deemed delivered when received or refused, if delivered via hand delivery, certified United States mail (postage prepaid and return receipt requested) or regular commercial overnight delivery service. (b) No Waiver. No waiver by a Party of terms of this Agreement shall be binding unless it is in writing, signed by that Party. No wavier of any term of this Agreement shall be deemed a waiver at any time thereafter of the same or any other term herein contained. (c) Binding Effect; Assignment. Subject to the next sentence, this Agreement inures to the benefit of and is binding upon the Parties hereto and their respective heirs, representatives, successors and permitted assigns. Neither Party may assign this Agreement or any interest therein without obtaining the other Party’s prior written consent, except that either Party may assign this Agreement to the purchaser of all or substantially all of such Party’s assets and as collateral to any financing source for such Party. (d) Entire Agreement; Amendments; Conflicts; Severability. This Agreement and the T&Cs are the entire agreement of the Parties concerning this Agreement’s subject matter. No course of conduct waives any terms hereof. This Agreement may not be modified except in a writing signed by the Parties. If any term of this Agreement is invalid or unenforceable, the remainder of this Agreement shall not be affected thereby. Each term of this Agreement shall be valid and enforceable to the extent permitted by law. (e) Enforcement Costs. In any litigation relating to this Agreement, the prevailing Party may recover all court costs, expenses (even if not taxable as court costs) and reasonable attorneys’ and paralegals’ fees (including those incurred pre-trial, at trial, on appeal and in bankruptcy), incurred in that matter, in addition to any other relief to which such Party may be entitled. (f) Counterparts; Facsimile; Survival. This Agreement may be signed in counterparts, each of which shall be deemed an original, but all together but one agreement. Executed signature pages transmitted by electronic transmission shall be legally valid and binding against the Parties. Sections 2, 3, 4, 5, 6, 7, 8, 9, and 10 shall survive the termination of this Agreement. (g) Law and Venue. This Agreement is governed by Florida law. Jurisdiction and venue for litigating any disputes in any way related to this Agreement shall be held in State or Federal Courts located in Palm Beach County, Florida. Each Party waives any objection to such venue including forum non-conveniens. (h) Liability Limitation. (i) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL CUSTOMFIN OR ANY OF ITS EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, OR AGENTS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES PROVIDED BY THE APP; (C) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; (E) LOSS OF GOODWILL OR REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. (ii) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE AGGREGATE LIABILITY OF CUSTOMFIN AND ITS EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, OR AGENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID TO CUSTOMFIN IN CONNECTION WITH THE LOAN THAT IS THE SUBJECT OF THE LIABILITY, OR $1,000, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. (i) Force Majeure. Neither Party shall be held responsible for damages caused by any delay or failure to perform under this Agreement (other than a failure to pay any amount due by such Party) which is due to any contingency beyond its reasonable control. (j) Jury Trial Waiver. EACH PARTY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF THIS AGREEMENT. (k) Compliance; Remedies. Each Party, at its sole expense, shall comply with all applicable laws, rules and regulations, pay all taxes applicable to it, and obtain all required licenses, permits and approvals to provide its services under this Agreement. Any remedies provided by this Agreement are cumulative and in addition to any other remedies available to a Party at law or equity. (l) Independent Contractor. Each Party is an independent contractor of the other, and shall not hold itself out as, or be deemed, an employee, agent, partner or joint venturer of the other Party. (m) Additional Remedies. Each Party is entitled to injunctive relief (and the other Party waives the posting of any bond in connection therewith) to enjoin any violation or threatened violation of this Agreement, in addition to any other remedies available under this Agreement or applicable law or in equity. If Client violates the terms of this Agreement, CustomFin may, at any time in its discretion, restrict Client and Client’s Representatives, or any of them, from using the App. (n) Acknowledgement. Client acknowledges that (a) CustomFin provides technology services only, and does not provide financing or Services, (b) CustomFin is not responsible for, has no input into, and cannot guaranty, whether any Financier approves or funds any Loan, (c) in addition to amounts CustomFin receives under this Agreement with respect to any Loan, CustomFin may receive a fee from a Financer in connection with any Loan provided by that Financier, (d) Client is totally responsible for any Services it provides and confirming it has received the Purchase Price, less any Discount and other discounts referred to above, in connection with any Loan funded by a Financier to cover the Purchase Price for any Service. In the event a fee due CustomFin from Financier or other party is remitted to Client, Client agrees to remit same fee amount, by the following business day to CustomFin. Amount(s) not paid to CustomFin, when due, shall incur the same late payment penalties as described in Section 5. CustomFin is not responsible for the actions or inactions of any Customer or Financier and Client waives any and all claims against CustomFin related to same. (o) Definitions; Interpretations. As used herein, a “person” includes both an individual and an entity. The term "including" is not limiting. Words of masculine gender include correlative words of the feminine and neuter genders and words importing a singular number include the plural number and vice versa. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date and year set forth above. ("Signature of CustomFin") Contact Information: One South Ocean Boulevard, Suite 306 Boca Raton, FL 33432 Tel: 561-290-0400 Fax: 561-370-6244 E-mail: info@customfin.com ("Signature of Client") Exhibit A - Fees and Costs Type of Fee or Cost / Amount: Onboarding Fee - Waived Maximum Discount Amount - Zero, or as Client may configure from time to time System Access Fee - Waived for the first 60 calendar days, then billed at current applicable monthly fee Monthly Minimum Commitment - Waived Minimum Monthly Fee - Waived All fees are subject to change with 30 days advance notice to Client.