Wholesale Agreement

This Wholesale Agreement (the “Agreement”) is by and between Asure Operations LLC, a Delaware limited liability company (“Provider”), and the person identified as “Partner” on the Sales Order (as defined below) (“Partner”). Each of Provider and Partner may be referred to herein individually as a “Party” and collectively as the “Parties.”

WHEREAS, concurrently with the execution of this Agreement, the Parties will enter into a wholesale pricing schedule, sales order, order form, or similar agreement (the “Sales Order”) that sets forth the fees to be paid by Partner to Provider in exchange for the provision of certain products set forth on the Sales Order (the “Qualified Product(s)”) by Provider to Partner’s end users (the “Services”). Any such Sales Order shall be incorporated into and form a part of this Agreement.

  1. TERM. This Agreement begins on the Effective Date and shall be for an Initial Term of three (3) years (“Initial Term”). Thereafter, the agreement renews annually for additional one (1) year terms (each a “Successive Term” and, collectively with the Initial Term, the “Term”) unless terminated earlier as provided herein.
  2. POTENTIAL PROSPECTS. Partner will solicit and market the Qualified Products to potential prospects (each a “Potential Prospect”). Provider may deny or accept any Potential Prospect, in its sole discretion. A “Potential Prospect” is an end user entity for which Partner has solicited any Qualified Product and that has been approved by Provider in its sole discretion and entered into Provider’s electronic database management system as a Potential Prospect. No prospect shall be a “Potential Prospect” if, at the time of submission, the prospect (i) is an existing end user of any of Provider’s products, (ii) has been an end user of Provider’s products within the two preceding years, (iii) is currently being solicited by, or in negotiations with, Provider (or any of Provider’s Reseller Partners) for any of Provider products, or (iv) is in the process of being transitioned to Provider via a Client Transition Agreement or any other similar agreement. Partner has no authority, without the written consent of Provider, to bind Provider to any contract, representation, understanding, act, or deed concerning Provider or any Qualified Products covered by this Agreement. Any Potential Prospect who actually receives Qualified Products from Provider and has executed a separate sales order with Provider for such Qualified Products shall be a “Customer”.
  3. EXPENSES AND FEES.
    • Each Party will be responsible for all expenses it incurs in connection with this Agreement including the payment of its business operations expenses, employment obligations, and taxes.
      • (i) Partner agrees to pay Provider or Provider’s affiliate all fees for the Services as are set forth on the applicable Sales Order and all applicable excise, sales, use, or other taxes, fees (including, but not limited to, monthly minimum fees), or charges applicable to the provision of the Services (the “Fees”). Partner agrees to reimburse Provider for any sales, use, and similar taxes arising from the provision of the Services that any federal, state, or local governments may impose. Shipping and handling/local courier/express delivery fees may be subject to adjustment at the discretion of Provider based on increases in third party costs. Partner shall pay the Fees through an ACH electronic funds transfer transaction (“ACH” or “EFT”). THE ACH AUTHORIZATION AGREEMENT A FORM OF WHICH WILL BE PROVIDED BY PROVIDER TO PARTNER MUST BE EXECUTED BY PARTNER AND RETURNED TO PROVIDER WITHIN FIVE (5) BUSINESS DAYS FOLLOWING THE EXECUTION OF THE SALES ORDER. Partner agrees that the funds representing the total amount due for the Fees must be on deposit in Partner’s designated bank account, as specified by Partner (the “Bank Account”), in collectible form and in sufficient amount on the day the Provider EFT charge is initiated.
      • (ii) Partner is responsible for billing each Customer for applicable amounts owed to Partner. If a Customer fails to pay amounts owed for services rendered, it is Partner’s responsibility to conduct all necessary collection related efforts. Any failure to pay by a Customer shall no relieve Partner of its obligation to pay Provider for services rendered.
      • (iii) Following the expiration of the first year of the Initial Term, Provider reserves the right to reasonably increase the Fees once per calendar year.
      • (iv) If Provider is unable to collect Fees due because of insufficient funds in Partner’s Bank Account or for any other reason, Partner must pay the amount due immediately upon demand, plus any applicable exceptions, processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law. Provider may offset all amounts owed to it from Partner from funds held by it for payment of Partner’s taxes or for payment to any third party.
  1. OBLIGATIONS OF PARTNER.
    • No Unauthorized Representations. Partner shall not make any promises, representations, warranties, or guarantees regarding the Qualified Products except in accordance with Provider’s standard written documentation then in effect or with the prior written approval of Provider, including any special pricing or terms for any of the Qualified Products.
    • Partner Authority. Partner has no authority, without the written consent of Provider, to bind Provider to any contract, representation, understanding, act, or deed.
    • End User Billing. Partner shall bill the Customers directly, at rates established by Partner, for the Services provided by Provider to such Customers. In the event that Partner fails to pay the Fees, the Customer will be liable for paying their share of such Fees and will be required to execute an End User Billing Agreement with Provider (or similar agreement) stating as such.
    • During the Term and for a period of two years after the expiration of the Term, neither the Partner nor any of its Affiliates shall, directly or indirectly, (i) solicit, entice away, or interfere with Provider’s relationship with any Customer or any other existing end user of any of Provider’s products or (ii) provide any products or services similar to the Qualified Products to any person, other than in connection with this Agreement. “Affiliate” means any Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
    • Non-disparagement. Partner agrees that he, she or it shall neither, directly or indirectly, engage in any conduct or make any statement disparaging or criticizing in any way Provider or its Affiliates, or any of their respective personnel, nor engage in any other conduct or make any other statement that could be reasonably expected to impair the goodwill of Provider, its Affiliates, or Provider’s business or reputation, in each case, except to the extent required by applicable law, and then only after consultation with Provider to the extent possible.
    • Trademarks and Tradenames. Partner:
      • (i) shall introduce the Qualified Products only under the tradenames, brand names, trademarks, service marks, symbols, logos or registered marks (“Marks”) with which they are identified by Provider in Provider’s published documentation;
      • (ii) shall not alter, obliterate, deface, or remove any Marks on any Provider written documentation or add any name, brand name, or trademark thereto; and
      • (iii) shall not display or use, in advertising or otherwise, any of Provider’s Marks and will not permit the same to be used or displayed by third parties.

Partner agrees all right, title, and interest in and to the Marks and any other current or future Marks belong exclusively to Provider. For additional material incorporating the Marks, Partner will submit to Provider its written request describing any proposed use of the Marks. Provider will review the material and within ten (10) business days of the receipt of the material either approve the material as is, approve subject to specified corrections, or reject the material.

  • Customer Support. Partner is responsible for providing customer support to the Customers and handling all sales and implementation engagements with the Customers. Any customer support, sales or implementation related services that are provided by Provider will be subject to additional fees that must be paid by Partner.
  1. CONFIDENTIAL INFORMATION. Partner and Provider each acknowledges that, by virtue of the relationship created by this Agreement, each party and/or its officers, employees, agents, and representatives will have access to information and materials about the other party which such other party deems to be confidential information regarding the business, operations, products, know-how and trade secrets of such other party (the “Confidential Information”). Each party agrees to hold such Confidential Information in strict confidence and agrees that it will ensure that its officers, employees, agents, and representatives will not disclose to any third person, or use, for its own benefit other than as allowed under this Agreement or for the benefit of any third person, any Confidential Information not generally available in the public domain relating to the business, operations, products, know-how and trade secrets of the other party, including without limitation information regarding technical information, customer lists, trade secrets, and any other practice or information relating to each party’s business or operations. Partner will acquire no right, title, or ownership interest in any of Provider’s Confidential Information, including technical, business or commercial information, specifications, data, computer programs, software, or documentation, that is furnished or available or otherwise disclosed pursuant to this Agreement. Upon the request of Provider, Partner shall immediately return to Provider all such information in its possession or control.
  2. TERMINATION.
    • This Agreement may be terminated by either party by providing thirty (30) days written notice prior to the end of the then applicable Term and any such termination shall be effective upon the expiration of the then current Term.
    • Either party may terminate this Agreement effective immediately by written notice if or when it is discovered that the other party has: (i) acted in a willful or reckless manner or made any materially false representation, report, or claim relative hereto; (ii) infringed or used the other’s Marks in breach of this Agreement; (iii) become insolvent, invoked as a debtor any laws relating to the relief of debtor’s or creditor’s rights, or had such laws invoked against it; (iv) become involved in any liquidation or termination of business; (v) been adjudicated bankrupt; (vi) been involved in an assignment for the benefit of its creditors; or (vii) has ceased to do business, liquidated, or dissolved.
    • Provider may terminate this Agreement effective immediately by written notice (a) as a result of legislative, regulatory, or judicial action, Provider determines that its interests are materially and adversely affected by continuing to provide the Services (b) Partner fails to pay any amounts owed to Provider for the Services, or (c) Partner undertakes any of the actions prohibited by Section 4.
    • Except as set forth herein, expiration or termination of this Agreement will not relieve the parties of any obligations due at the time of expiration or termination, nor will expiration or termination prejudice any claim of either party accrued on account of any default or breach by the other. Upon expiration or termination of this Agreement, each party will immediately return to the other party, or, if agreed to by the other party, destroy, all documentation, advertising and promotional materials and all Confidential Information supplied by the other party, and cease holding itself out, in any manner, as a participant in the program contemplated by this Agreement.
  3. LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS ARISING UNDER SECTION 8, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER OR ITS AFFILIATES FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR ANY OTHER INDIRECT LOSS OR DAMAGE OF ANY KIND WHATSOEVER INCLUDING LOST PROFITS OR REVENUES ARISING OUT OF THIS AGREEMENT. IN NO EVENT SHALL PROVIDER’S TOTAL CUMULATIVE LIABILITY HEREUNDER TO PARTNER OR ANY THIRD PARTY, FROM ANY CAUSE OF ACTION WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE, EXCEED $25,000. ALL CLAIMS WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT.
  4. INDEMNITY. Each Party (as applicable, the “Indemnifying Party”) shall indemnify, protect, defend and hold the other Party, its subsidiaries and affiliates and their respective officers, directors, shareholders, agents and employees harmless from and against any and all costs, claims, suits, losses, damages, liabilities and expenses (including reasonable attorneys’ fees) arising out of or resulting from any material breach by such Indemnifying Party (or its employees or agents) of any representation, warranty, term or covenant hereunder.
  5. GENERAL.
    • Unless otherwise stated in this Agreement, all notices hereunder shall be in writing and deemed given to the address specified on the (a) signature page hereto, for Partner and (b) in this Section, for Provider: (i) when personally delivered, (ii) one (1) day after delivered to an overnight courier guaranteeing next day delivery, (iii) three (3) days after deposit in the United States mail, postage prepaid, sent certified or registered, or (iv) when sent via email to the email address specified on the signature page or to such other contact email address provided by the Parties. Notice information set forth in this Section or on the signature page hereto may be updated at any time via written notice to the other Party.

Asure Operations LLC

405 Colorado Street, Suite 1800

Austin, TX 78701

Attn: Legal Department

Phone: 888-323-8835

Email: legal@asuresoftware.com

  • Partner will not assign any right or interest, or delegate any obligation, under this Agreement.
  • Sections 3, 4, 5, 6, 7, 8, and 9 shall survive any termination of this Agreement.
  • Neither party will disclose, advertise, or publish the existence, nor the terms or conditions of this Agreement, without prior written consent of the other party.
  • No Financial Advisor Fees. Provider is restricted from accepting any broker’s, finder’s, financial advisor’s or other similar fee or commission for services rendered by any financial advisors on Provider’s platform, website, or similar. If a Partner is a “financial advisor”, such Partner acknowledges and agrees that they may be added to Provider’s platform as a “preferred financial advisor” and may be made available to any client of Provider that uses Provider’s platform.
  • Compliance with Laws. Each party will comply with all applicable requirements of federal, state and local laws, ordinances, administrative rules and regulations.
  • Governing Law. This Agreement and performance hereunder will be governed by and construed in accordance with the laws of the State of Delaware, exclusive of its conflict of law rules. Any action or proceeding arising from or relating to this Agreement must be brought in a court located in Delaware, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
  • Force Majeure. Neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, or failures or delay in transportation or communications.
  • The waiver or failure of either party to exercise in any respect any right provided for in this Agreement will not be deemed a waiver of any further right under this Agreement.
  • If any provision of this Agreement is invalid, illegal, or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement will be valid and enforceable to the maximum extent possible.
  • Relationship of the Parties. Neither party will have any right, power, or authority to assume, create, or incur any expense, liability, or obligation, expressed or implied, on behalf of the other party, except as expressly provided herein. This Agreement is not intended to be nor will it be construed as a joint venture, association, partnership, or other form of a business organization or agency relationship. Partner assumes full responsibility for the acts of its employees.
  • Entire Agreement, Electronic Signature. This Agreement, the Exhibits hereto, and any other addenda and/or attachments hereto, is the entire agreement between the parties with respect to the subject matter hereof. No modifications of this Agreement will be binding on either party, unless in a writing mutually signed by a duly authorized representative. Electronic signatures are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.