Independent Sales Organization Agreement

5.1 Confidential Information. Independent Sales Organization acknowledges that in its performance of its duties hereunder Cashable may communicate to Independent Sales Organization (or its designees) certain confidential and proprietary information, including without limitation information concerning Cashable or the Cashable Program and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by Cashable; (ii) becomes public knowledge or known to the Independent Sales Organization after disclosure by Cashable other than by breach of the Independent Sales Organization’s obligations under this section or by breach of a third party’s confidentiality obligation; (iii) was known by the Independent Sales Organization prior to disclosure by the Cashable other than by breach of a third party’s confidentiality obligation; or (iv) is independently developed by the Independent Sales Organization without the use of any Confidential Information. As a condition to the receipt of the Confidential Information from Cashable, the Independent Sales Organization shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the Cashable’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with Cashable’s express prior written consent; (iii) disclose the Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the Independent Sales Organization’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and ( v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The Independent Sales Organization shall promptly notify Cashable of any unauthorized disclosure or use of the Confidential Information. The Independent Sales Organization shall cooperate and assist Cashable in preventing or remedying any such unauthorized use or disclosure. Confidential information shall specifically include the form and substance of this Agreement and any agreement with a Merchant 

5.2 Indemnification. Independent Sales Organization agrees to indemnify, defend, and hold harmless Cashable and its affiliates, and their employees, members, managers, officers or agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by the Independent Sales Organization or any IC Agent, employee, agent or affiliate of the party to comply with the terms of this Agreement; (ii) any warranty or representation made by the Independent Sales Organization being false or misleading; (iii) any representation or warranty made by the Independent Sales Organization or any IC Agent, employee or agent of the Independent Sales Organization to any third person other than as specifically authorized by this Agreement, (iv) the manner or method in which the Independent Sales Organization or its IC Agents perform their services pursuant to this Agreement, ( v) negligence of the Independent Sales Organization or its IC Agents, subcontractors, agents or employees, or (vi) any alleged or actual violations by the Independent Sales Organization or its IC Agents, subcontractors, employees or agents of any governmental laws, regulations or rules 

5.3 Disclaimer of All Warranties. THE Cashable PROGRAM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. Cashable DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO INDEPENDENT SALES ORGANIZATION AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Cashable OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF Cashable OBLIGATIONS

5.4 Limitation of Liability. Cashable SHALL NOT BE LIABLE TO THE INDEPENDENT SALES ORGANIZATION, NOR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE Cashable PROGRAM, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS) UNLESS SUCH CLAIM ARISES FROM GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT ON BY Cashable 

5.5 Representations and Warranties. Independent Sales Organization represents and warrants to Cashable as follows:

  (a) Independent Sales Organization has the full capacity, power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against Independent Sales Organization in accordance with its terms and no provision requiring Independent Sales Organization’s performance is in conflict with Independent Sales Organization’s obligations under any charter or any other agreement (of whatever form or subject) to which Independent Sales Organization is a party or by which it is bound.
(b) If other than a sole proprietorship, Independent Sales Organization is duly organized, authorized and in good standing under the laws of the state of its organization and is duly authorized to do business in all other states in which Independent Sales Organization’s business make such authorization necessary or required.

(c) Except as otherwise disclosed in writing by Independent Sales Organization to Cashable on or before the effectiveness of this Agreement, neither Independent Sales Organization nor any principal of Independent Sales Organization has in the ten years preceding the date of this Agreement been subject to any (i) criminal conviction (including a plea of nolo contender but excluding traffic misdemeanors or other petty offenses); (ii) bankruptcy filings; (iii) Internal Revenue Service liens; (iv) federal or state regulatory administrative or enforcement proceedings; or (v) restraining order, decree, injunction or judgment in any proceeding or lawsuit alleging fraud or deceptive practices.

5.7 Non-Solicitation of Merchants. Without Cashable’s prior written consent (which consent may be withheld in Cashable’s sole and absolute discretion), Independent Sales Organization shall not knowingly cause or permit any of their IC Agents, employees, agents, principals, affiliates, subsidiaries or any other person or entity (i) to solicit or provide services that compete with the Cashable Program to any Merchant that has been accepted by Cashable; (ii) to solicit or otherwise cause any Merchant that has been accepted by Cashable to terminate its participation in any of the Cashable Program; or (iii) to solicit or market services to any Merchant that is already directly or indirectly provided any of the Cashable Program by Cashable, whether or not such are provided under the terms of this Agreement. This section shall apply during the term of this Agreement and for two (2) years after any termination, cancellation or expiration of this Agreement. Independent Sales Organization will remain responsible for resulting damages from such prohibited solicitation.

5.8 Non-Solicitation.
(a) During the period that this Agreement is in effect and for the two (2) year period immediately following termination of this Agreement, Independent Sales Organization shall not directly or indirectly through another entity (i) induce or attempt to induce any employee of, or consultant to, Cashable or its subsidiaries to leave the employ of, or consultancy to, Cashable or its subsidiaries, or in any way interfere with the relationship between Cashable or its subsidiaries and any employee or consultant thereof, (ii) hire any person who was an employee of, or consultant to, Cashable or its subsidiaries at any time during the twelve-month period immediately prior to the date on which such hiring would take place without the written consent of a Cashable officer (it being conclusively presumed by the parties so as to avoid any disputes under this section that any such hiring within such twelve-month period is in violation of clause (i) above);
(iii) call on, solicit or service any customer, referral partner, affiliate, agent, supplier, licensee, licensor, consultant, contractor or other business relation of Cashable or its respective subsidiaries in order to induce or attempt to induce such person to cease doing business with Cashable or its subsidiaries, or in any way interfere with the relationship between any such customer, referral partner, affiliate, agent, supplier, licensee, licensor, consultant, contractor or other business relation and Cashable or its subsidiaries (including, without limitation, making any negative statements or communications about Cashable or its subsidiaries); or (iv) call on, solicit, or take away or attempt to call on, solicit, or take away any of Cashable’s customers referral partners, affiliates, agents and vendors on whom Independent Sales Organization called or with whom Independent Sales Organization became acquainted during its contractual relationship with Cashable, either on its behalf or that of other person, firm, or corporation or any Merchant.

(b) If, at the time of enforcement of the covenants contained in this section above (the “Protective Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree thatthe maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the Protective Covenants to cover the maximum duration, scope and area permitted by law. Independent Sales Organization agrees that the Protective Covenants are reasonable in terms of duration, scope and area restrictions and are necessary to protect the goodwill of Cashable’s businesses and agrees not to challenge the validity or enforceability of the Protective Covenants.

5.9 Intellectual Property. “Intellectual Property” means all of the following owned by a party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.” Other than the express licenses granted by this Agreement, Cashable grants no right or license to Independent Sales Organization by implication, estoppel or otherwise to the Cashable Program or any Intellectual Property Rights of Cashable. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of Cashable, in the Cashable Program) and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. Cashable (and not Independent Sales Organization) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for the Cashable Program and any Intellectual Property Rights incorporated therein. Independent Sales Organization will cooperate with Cashable in pursuing such protection, including without limitation executing and delivering to Cashable such instruments as may be required to register or perfect Cashable ‘s interests in any Intellectual Property Rights and any assignments thereof. Independent Sales Organization shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from Cashable in connection with this Agreement.

SECTION SIX

6.1 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable forany reason, the remaining provisions not so declared shall nevertheless continue in full force and effect but shall be construed in amanner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.

6.2 Drafting. No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the parties and therefore, any ambiguity or uncertainty shall be interpreted accordingly

6.3 Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shallbe in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.

6.4 Assignment. Independent Sales Organization shall not assign, delegate, subcontract, license, franchise, or inany manner attempt to extend to any third party any right or obligation under this Agreement except as otherwise permitted herein without the prior written consent of Cashable including an assignment by virtue of the sale of all or substantially all of its assets or equity. Cashable may assign its rights and obligations hereunder without notice to Independent Sales Organization.

6.5 Amendments. No provision of this Agreement may be amended, modified or waived except by a written agreement signed by both parties.

6.6 Notices. All notices and other communications required or permitted under this Agreement shall be in writing and given by personal delivery, internationally recognized overnight carrier, registered or certified mail (postage prepaid with return receipt requested) sent to the addresses set forth herein. Such notice or other communications shall be deemed received (i) on the date delivered, if delivered personally, (ii) on the business day after being sent by an internationally recognized overnight air carrier, or (iii) five (5) days after being sent if sent by first class registered mail, return receipt requested. If to Independent Sales Organization or Guarantor: To the address as set forth below on the signature page of this Agreement. If to Cashable:

Cashable LLC
1221 McDonald Ave
Brooklyn, NY 11230
Phone: 212-225-8279

6.7 Section Headings. The section headings contained in this Agreement are for convenient reference only and shall not in any way affect the meaning or interpretation of this Agreement.

6.8 Counterparts/Facsimile Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and such counterpart shall together constitute one and the same instrument. The signatures to this Agreement may be evidenced by facsimile or PDF copies reflecting the party’s signature hereto, and any such facsimile copy shall be sufficient to evidence the signature of such party as if it were an original signature.

6.9 Entire Agreement Binding Effect. This Agreement, including all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer  or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.

6.10 Remedies: Without limiting the foregoing, in the event of a breach of this Agreement by Independent Sales Organization, Cashable shall be entitled to apply to a court of competent jurisdiction for an injunction to restrain such breach, without the need for bond. Any remedies hereunder shall be in addition to any other remedies available to Cashable in law or in equity.

6.11 Jurisdiction; Venue; Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in New York County, New York for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery). Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Each party irrevocably waives, to th  fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. If either party shall commence an action or proceeding to enforce any provisions of the documents contemplated herein, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.

.12 Attorney’s Fees. Should suit or arbitration be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including expert witness fees and fees on any appeal.

6.13 Guaranty. Independent Sales Organization and the principal(s) of Independent Sales Organization or such other third party acceptable to Cashable (collectively, “Guarantors”) hereby jointly and severally guarantee indefeasible payment and performance of all obligations (the“Obligations”) of Independent Sales Organization and principals under this Agreement, as hereafter amended. Guarantors’ obligations underthis section are independent of Independent Sales Organization’s and principals’ obligations and a separate action may be brought against Guarantors, whether or not Independent Sales Organization or principals be joined in such action. Guarantors authorize Cashable, without notice, from time to time and without affecting Guarantors’ liability, to modify the Obligations. Guarantors waive: any right to require Cashable to proceed against a Guarantors or pursue any other remedy; any defense arising by reason of any disability or other defense of Independent Sales Organization or any principal, or cessation from any cause of Independent Sales Organization’s or any principal’ s liability; any claim that Guarantors’ obligations exceed Independent Sales Organization’s or any principal’s; until paid and performed in full, all rights of subrogation and contribution; and any right to enforce any remedy of Cashable against  Independent Sales Organization or any principal. Guarantors acknowledge that Guarantors shall have sole responsibility for obtaining from Independent Sales Organization and principals information concerning their financial condition. Guarantors agree to pay all attorneys’ fees and other costs incurred in enforcing this section or the Obligations

IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto, effective as of the date and year first above written.

CASHABLE LLC