PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF THIS SELLER AGREEMENT. BY INDICATING BELOW THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU HAVE ENTERED INTO A LEGALLY BINDING AGREEMENT WITH CU DIRECT CORPORATION ("CUDC").
WHEREAS, Seller is engaged in the business of providing one or more medical or other procedures,
services, or products (collectively or individually, "Seller Services"); and
Introduction: This AGREEMENT ("the Agreement"), by and between CU Direct Corporation a Nevada corporation with a principal place of business located at 2855 E. Guasti Road, Suite 500, Ontario, CA 91761 ("CUDC"), and you, the Seller with a principal place of business located at the address given within online enrollment ("Seller"). CUDC and Seller are sometimes hereinafter referred to collectively as the "Parties" or, individually, as a "Party."
Program Participation. Participation in the Program is subject to CU Direct Corporation's prior approval and Your continued compliance with the Program Policies. By enrolling in the CUDC program, you represent that you are authorized to sign on behalf of the Seller and enter the Seller into a legal contract.
WHEREAS, Seller desires to supply Seller's clients (collectively, "Clients" or, individually, a
"Client") with access to loans and other financing options (collectively, "Loans" or, individually, a
"Loan") to be used to facilitate payment for one or more of the Seller Services; and
WHEREAS, Seller desires to enter into a business relationship with CUDC, whereby Seller will
purchase a non-exclusive, revocable "Software License" to use CUDC's "Software" (as such terms are
hereinafter defined), thereby allowing Seller's Clients to apply for Loans through independent third
party credit unions or other financial institutions (collectively, "Financial Institutions" or, individually, a
NOW THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which is acknowledged, the Parties hereby agree as follows:
1. Recitals: The foregoing Recitals are incorporated by this reference.
2. Term: The initial term (the "Initial Term") of this Agreement shall be for a period of three (3)
months commencing upon the date of this Agreement. Upon the expiration of the Initial Term or any
Renewal Term (as such term is hereinafter defined), this Agreement shall automatically renew for an
additional one (1) year term (individually, a "Renewal Term" or, collectively, the "Renewal Terms")
unless either Party notifies the other, in writing, of such Party's intent to terminate this Agreement at
least thirty (30) days prior to the expiration of the Initial Term or the applicable Renewal Term. The
Initial Term and all Renewal Terms are sometimes hereinafter referred to collectively as the "Term."
3. CUDC Services: CUDC hereby agrees to perform the following services (individually or collectively,
the "CUDC Services") during the Term:
a. Software: Subject to the terms of the Software License, CUDC shall permit Seller to
utilize a certain internet based software package, known commercially as
'lifestylels.net' (the "Software"), which Software is to be used in connection with
facilitating the processing of loan applications (collectively, "Loan Applications" or,
individually, a "Loan Application") from Seller's Clients to Financial Institutions.
The Software shall be the only means through which Seller shall be entitled to cause
Loan Applications to be submitted to Financial Institutions under this Agreement.
Consequently and among things, Seller agrees not to facilitate Clients submitting
Loan Applications to Financial Institutions by direct submission, by facsimile
transmission, or by or through any other means. The use of the Software shall be
subject to the terms and conditions set forth herein.
b. Training: CUDC shall supply Seller with one or more copies of the Software, and will
additionally provide reasonable training in the Software's use to the management and
staff of Seller.
c. Access And Support; Updates: CUDC shall use its good faith efforts: (i) to provide
access to the Software through the internet or other web-based means, (ii) to maintain
access to the Software for Seller, (iii) to provide all necessary support for user
identification access and shall administer all passwords and user IDs, and (iv) to carry
out any applicable updates or patches to the software online during non-operating
hours. Such updates are part of the system and are included in the pricing exhibit
attached hereto. Provided that it has used its good faith efforts as described herein, CUDC
shall not be liable for any inability to provide access to the Software, any failure to
maintain access to the Software, any failure to provide support, or any like or similar
matters, and shall further not be responsible for any damages, liabilities, claims,
lawsuits, or causes of actions arising as a consequence of such matters.
4. Lending Decisions Made By Financial Institution, Not By CUDC; Clients' Rights To Pursue
Alternate Financing: Seller expressly acknowledges and agrees that all lending decisions and
determinations with respect to possible Loans shall be made at the sole and absolute discretion of the
applicable Financial Institutions. Consequently, CUDC is not providing, and cannot provide, any
assurances that any particular Client, or any Clients at all, will qualify for any Loan with any Financial
Institution. Further, a Financial Institution's acceptance of a Loan Application from a Client does not
bind the Client to use or accept funding from such Financial Institution and does not entitle Seller to
receive any payment from such Financial Institution.
5. Arrangement of Loans: Seller will act as Financial Institution's agent for the purpose of
receiving loan and membership requests and documenting loan advances as specified in this Agreement
and authorized by Financial Institution. Seller's authority is limited to documenting Loans for
Financial Institution members according to the terms prescribed by Financial Institution. Seller shall
not process any Loans without prior approval from the applicable Financial Institution.
6. Software License: CUDC hereby grants, to Seller, a non-exclusive license (the "Software
License") to utilize the Software in Seller's offices for the sole purpose of facilitating efforts of
Seller's Clients to apply for Loans. The Software License shall be deemed to be automatically
revoked and terminated upon the expiration or earlier termination of the Term.
7. Restricted Rights to Use of Software: Only individuals authorized by Seller may access and
use the Software. Seller shall provide sufficient safeguards to prevent the unauthorized use of the
Software, including advising all employees, agents, and representatives that the Software is not to be
copied or revealed to anyone other than authorized employees of Seller. Seller shall change its
password if any employee who had such knowledge is terminated.
8. One Time Set-Up Fee: In connection with CUDC creating Seller's account and providing the
Software, associated training, and other services related to setting up Seller's account, Seller shall
pay to CUDC the "Initial Set-up Fee" set forth on Exhibit A attached hereto.
9. Pricing: In addition to the One Time Set-Up Fee, Seller shall pay for the continuing use of the
Software and the CUDC Services as set forth on Exhibit A attached hereto, as it may be amended from
time to time. Seller hereby authorizes the Financial Institutions to deliver the CUDC Payment directly to CUDC upon distribution of a Loan's proceeds to Seller.
10. Exclusive Arrangement; Seller Utilization Prohibitions Relating To Credit Unions:
Seller agrees that the CUDC Services shall be the sole and exclusive services through which Seller
refers, recommends, and facilitates Clients in seeking financing from credit unions. Notwithstanding the
foregoing, Seller shall not be required to refer, recommend, or facilitate the use of CUDC Services with
respect to Clients that seek financing from banks.
Seller further agrees that, for a period of two (2) years from the date of the termination of this
Agreement for any reason, Seller shall be prohibited (the "Credit Union Financing Prohibition") from
utilizing any program, means, or methods that assist Clients in seeking financing from credit unions.
Amongst other things and without limitation, the Credit Union Financing Prohibition prohibits Seller
(1) from using any relationship developed through or because of the CUDC Services, whether such
relationship is of a personal or business nature, to assist Clients in seeking financing from credit unions
and (2) from using any information obtained from or because of the CUDC Services to assist Clients in
seeking financing from credit unions. The Credit Union Financing Prohibition does not apply to
programs, means, or methods which are intended to assist Clients in seeking financing from banks.
Any failure by Seller to comply with the Credit Union Financing Prohibition shall be deemed an
immediate and material breach of this Agreement and will entitle CUDC to institute any and all necessary
action against Seller which CUDC deems appropriate, including but not limited to seeking temporary
and permanent injunctive relief against Seller and any other persons or entities. Furthermore, both
CUDC and Seller agree that it would be impracticable and extremely difficult to ascertain the amount of
actual damages caused by material breach of the Credit Union Financing Prohibition. Therefore, the
Parties agree that, in the event that Seller violates the Credit Union Financing Prohibition, Seller
shall pay to CUDC one hundred fifty dollars ($150) for each breach. The Parties further agree that this
liquidated damages provision represents reasonable compensation for the loss which would be incurred
by CUDC due to any such breach. Nothing in this section is intended to limit CUDC's right to obtain
injunctive and other relief as may be appropriate.
11. Non Disclosure/Confidentiality: The Parties acknowledge and agree that the Software and other
means and methods through which the CUDC Services are provided and performed consist of and
comprise proprietary software, materials, documents, methods, information, matters, and the like
(collectively, "Proprietary Matters"), which are commercially valuable in their own right. The Parties
recognize that the continued value of such Proprietary Matters depends upon the preservation and
enforcement of the confidentiality of such Proprietary Matters, and that the disclosure of such
Proprietary Matters will cause immediate, material, and irreparable harm to CUDC, its business and
operations. As a consequence, Seller covenants to take all steps and efforts necessary to keep the
Proprietary Matters confidential (the "Confidentiality Covenant"). Consistent with the foregoing,
Seller also agrees to strictly limit access, use, dissemination, disclosure, reproduction, and distribution
of the Proprietary Matters in accordance with the purposes set forth in this Agreement. Any failure by
Seller to keep the Proprietary Matters strictly confidential shall be deemed an immediate and material
breach of this Agreement and will entitle CUDC to institute any and all necessary action against Seller
which CUDC deems appropriate, including, but not limited to, seeking temporary and permanent
injunctive relief against Seller and any other persons or entities.
12. Data Security And System Integration: Seller understands that transmitting consumer
information that includes, but is not limited to, credit data, social security numbers, and other personal
information, as well as storage of such data outside of the Software, poses a security risk. Seller
agrees to take all precautions necessary to ensure that no sensitive data obtained from the Software is
transferred via an insecure method nor stored on an insecure computer, database, server, or any other
machine or equipment. Seller agrees that CUDC shall not be responsible for problems or damages
relating to the integration and functioning of software, applications, and other third party systems.
13. Document Destruction: Upon the request of CUDC or a Financial Institution, Seller will destroy,
by shredding or burning, any Loan documents in its possession, including without limitation original
signed agreements between Financial Institutions and Clients.
14. Late Charges: A late charge of one and one-half percent (1.5%) per month will be added on
balances thirty (30) days past due.
15. Termination: This Agreement may be terminated in accordance with the following terms and
a. Immediately and automatically upon the expiration of the Initial Term or any Renewal
Term, provided that either Party has notified the other, in writing, of such Party's intent
to terminate this Agreement at least thirty (30) days prior to the expiration of the Initial
Term or the applicable Renewal Term, in accordance with Section 2 of this Agreement.
b. By CUDC upon ten (10) days written notice to Seller after the occurrence of a breach
or default by Seller hereunder.
c. Immediately upon termination, all amounts due and owing by Seller to CUDC will be
deducted and processed for payment to CUDC.
The Confidentiality Covenant and the Credit Union Financing Prohibition shall survive any termination
of this Agreement.
16. Representations, Warranties, And Covenants Of Seller: Seller hereby represents,
warrants, and covenants to CUDC as follows, upon which representations, warranties, and covenants CUDC
has expressly relied in entering into this Agreement and agreeing to engage in the transactions described
herein and contemplated hereby:
a. Seller is currently, and throughout the Term shall continue to be, duly organized,
validly existing, and in good standing under the laws of the state(s) in which Seller
conducts business, and has and shall have, as applicable, full power and authority and,
if required, all licenses and permits necessary or appropriate to carry on its business as
now conducted and to own and operate its assets, properties, and businesses.
b. The execution and delivery of this Agreement by Seller and Seller's performance
of the transactions contemplated hereunder, have been duly and validly authorized, and
this Agreement is binding and enforceable against Seller in accordance with its
terms. There are no investigations pending or, to the best of Seller's knowledge,
threatened against Seller by any regulatory body having jurisdiction over Seller
regarding Seller's business, licenses, permits, or assets.
c. Seller covenants that, at no time during the Term will Seller knowingly
communicate to any Financial Institution any incorrect or inaccurate information of any
kind or nature.
d. Seller has, and will continue to have throughout the Term, legal capacity to perform
and provide the Seller Services.
e. All information provided to any Financial Institution concerning prospective Loans
shall be obtained by Seller directly from the applicable Clients or from third parties
with such Client’s consent. All information provided to any Financial Institution by
Seller concerning the Seller Services shall be true and correct in all material
f. Each Loan transaction will be, to the best knowledge of Seller, entered into by the
applicable Clients in good faith, with all Loan Applications and other documents
relating to such Loans having been actually signed by the applicable Clients. Each
Loan and all of the other transactions described in the documents relating thereto shall,
to the best knowledge of Seller, be binding upon the applicable Clients who are the
borrowers with respect thereto.
g. Each borrower has, and will continue to have, legal capacity to enter into a loan
transaction, and such transaction is, and will continue to be, legally enforceable against
the borrower. The borrower named in any such transaction is either (i) a member of the
applicable Financial Institution or (ii) is entitled to become a member of such Financial
Institution and has executed an application for Financial Institution membership and the
application for membership and supporting initial deposit have been delivered to
h. There are no defenses to any Loan.
i. The statements in this Agreement are true and are offered for the purpose of inducing
Financial Institution to make Loans under this Agreement.
17. Default; Remedies: In addition to all other breaches and defaults described herein, the occurrence
of any one or more of the following shall constitute a breach and default under and in connection with
a. Seller's failure to fully and timely pay any amounts at any time due and owing to
CUDC under this Agreement;
b. The failure of either Party to fully and timely perform any duty or obligation under this
Agreement within ten (10) days of receiving written notice of such failure;
c. Either Party ceases to do business as a going concern, dissolves, becomes insolvent,
files for bankruptcy, or has a receiver appointed for any portion of such Party's
property or assets;
d. If any representation or statement made or furnished by or on behalf of Seller to CUDC
or any other person or entity is or was false or inaccurate when made.
In the event of any breach or default hereunder, the non-defaulting Party shall be entitled to exercise any
right or remedy available to such non-defaulting Party, whether at law, in equity, or by agreement.
18. Mutual Indemnifications: Each Party shall indemnify and hold harmless the other Party from, of,
against, and with respect to any and all losses, claims, demands, liabilities, costs, damages, and expenses
(including attorneys' fees) that such other Party may incur by reason of any negligent or wrongful act of
or by such Party in the performance of its duties under this Agreement or arising from any breach hereof
by such Party. Each Party agrees to provide the other Party with prompt notice of any claim or suit
within the scope of the indemnities contained in this Agreement, and to furnish all relevant facts in such
Party's possession or control, cooperate fully with the other Party hereto in its defense of any such
action, and not to settle any such matter without the other Party's prior written consent, unless any such
settlement contains an unconditional release from liability of the other Party.
19. Seller's Obligations to Seller's Clients: Seller further agrees promptly to fulfill all
obligations to Seller's Clients as required by the loan agreement, underlying sales transaction,
manufacturer's warranty, or otherwise.
20. Third Party Beneficiaries: For all purposes of this Agreement, each Financial Institution that
contracts with CUDC to provide loans through the Software shall be expressly deemed to be an intended
third party beneficiary of this Agreement and shall have the right to enforce applicable terms and
conditions of this Agreement.
21. Seller Indemnification Of Financial Institutions; Seller Guaranties In Limited Events:
As a consequence of Financial Institutions being intended third-party beneficiaries under this
Agreement, Seller hereby expressly agrees that, in addition to all other indemnification obligations set forth herein, Seller shall indemnify, defend, and hold harmless all Financial Institutions from, of,
against, and with respect to any and all actions, claims, defenses, losses, or liabilities, including
attorneys' fees, asserted against such Financial Institutions by Seller's Clients as a result of or arising
out of any claim or defense that is or could be asserted against Seller, regardless of whether such
claim or defense is related to the quality of the service provided or the condition of the products sold,
whether such claim or defense existed at the time the Loan became effective or arose thereafter, or
whether the claim or defense is true or false or brought in good faith. The foregoing agreements to
indemnify, defend, and hold harmless shall survive full payment of the Loan and termination of this
Notwithstanding any provision herein to the contrary, Seller unconditionally guaranties full
performance of each Loan made by a Financial Institution when and if Seller, without the applicable
Financial Institution's prior written consent, modifies the documents related to the Loan or makes any
settlement or arrangement with Seller's Client contrary to the terms of such Loan documents, or if
Seller's Client fails to make required payments because of any breach of Seller's duties related to
the quality of the services provided by Seller or the condition of the products sold by Seller.
22. Use of Financial Institutions' Intellectual Property: Without the prior written consent of the
applicable Financial Institution, Seller shall not use such Financial Institution's name, logo, or any
other identifying mark or slogan in any advertising, promotional material, press release, or indirect
discussions or correspondence with Clients or potential Clients.
23. Choice of Law: This Agreement shall be governed and construed in accordance with the laws of
the United States and the State of California, and the Parties consent to the sole and exclusive jurisdiction of
the state courts and U.S. federal courts having jurisdiction in Orange County, California, for any dispute
arising out of this Agreement. No action by CUDC or Seller arising under this Agreement may be
brought at any time more than two (2) years after the occurrence of the facts upon which such cause of
action is based.
24. Notices: Any notice required or permitted hereunder shall be in writing and shall be deemed to be
delivered either: (i) upon personal delivery to the Party to whom such notice is addressed, or (ii) three
(3) days after being deposited in the United States Mail, postage prepaid, certified mail, return receipt
requested, addressed to the respective Party at such Party's address set forth below, or at such other
address as may be subsequently designated by such Party in writing to the other Party hereto and
delivered in accordance with this Section:
CUDC: CU Direct Corporation
2855 E. Guasti Road, Suite 500
Ontario, CA 91761
25. Assignability: This Agreement is not assignable or delegable by Seller without CUDC's prior
written consent, which consent may be withheld for any or no reason. It is acknowledged and agreed by
Seller that CUDC may assign its rights hereunder at any time and without notice to Seller.
26. General: This Agreement is binding upon the successors, heirs, personal representatives, and
assigns of the Parties, and constitutes their entire agreement with respect to the matters discussed herein. All oral representations or prior negotiations are deemed to have been merged into this Agreement. Any Party which breaches any of such Party's warranties, representations, covenants, obligations, or responsibilities herein shall pay all legal fees and other expenses incurred by any non-breaching Party as a consequence of such breach. If any provision of this Agreement is held to be invalid or unenforceable, this Agreement shall be considered divisible as to such provision and such provision shall thereupon be inoperative and shall not be part of the consideration moving between the Parties. The remaining provisions of this Agreement shall, however, continue to be valid and binding and of like effect as though such provision were not included herein. No waiver by a Party of any of such Party's rights, or any breach or default of another Party shall operate as a waiver of any other right, breach, or default, or of the same right, breach, or default in the future.
CUDC's performance under this agreement is subject to interruption and delay due to causes beyond its
reasonable control such as acts of God, acts of any government, war or other hostility, civil disorder, the
elements, fire, explosion, power failure, equipment failure, industrial or labor dispute, inability to obtain
necessary supplies and the like.
This Agreement may be amended from time to time by CUDC upon thirty (30) days prior written notice to
the Seller. After the effective date of CUDC's amendment, Seller's failure to terminate this
Agreement before the effective date of such amendment shall be deemed to be Seller's agreement to an acceptance of CUDC's amendment. Should Seller not agree to abide by such amendment, Seller
must terminate this agreement by providing CUDC with written notice of its decision to terminate this
Agreement. Such notice must be sent by facsimile to CUDC, attention President & CEO; the original of
such notice must be sent by U.S. Mail, return receipt requested.