CYPHR, INC. MERCHANT AGREEMENT

This agreement is dated [sc name="todaysdate"] and is between Cyphr, Inc. (“Cyphr”) and (“Company”).

Cyphr is an application that allows local businesses to send time-sensitive exclusive “Secrets” (i.e., deals) to their favorite users with that brand (a “Cyphr Secret”). Cyphr provides local merchants access to a unique platform to manage campaigns and review campaign analytics including the total number of viewers for each Cyphr Secret.

Company and Cyphr agree as follows:

1. Campaign(s). Cyphr will create and manage Cyphr Secret campaigns for Company in accordance with the terms and conditions in this Agreement.


2. Payment. Company will pay Cyphr $0.10 cost per view (“CPV”) for each unique viewer who views a Cyphr Secret at the conclusion of a Cyphr Secret campaign. For example, if a ten-day Cyphr Secret campaign has 100 unique views then Company will pay Cyphr $10.00 upon receipt of Cyphr’s invoice.


3. Invoicing. Cyphr will invoice Company: Every Month. Company will receive all invoices electronically and agrees to pay each invoice promptly through Intuit.


4. Default. A default exists under this Agreement if one of the following events occurs (each an “Event of Default”):

(a) If Company fails to timely pay Cyphr;

(b) If Company fails to comply with any of the material terms of this Agreement; or

(c) If Company fails to abide by Cyphr’s Terms of Service.


5. Remedies Upon Default. Any invoice that remains unpaid after its due date will incur interest at the rate of 14.99% per year or the maximum rate allowed by law, whichever is less.


6. Termination. This Agreement may be terminated by either party upon written notice to the other, if: (a) the other party breaches any material obligation, and (b) the breaching party fails to cure such breach within ten (10) days of receipt of such notice.


7. Representations and Warranties. Both parties respectively represent and warrant to each other that each is fully authorized and empowered to enter into this Agreement and that each is entering into this Agreement and to each party’s knowledge the performance of their respective obligations under this Agreement will not violate any agreement between that party and any other person or organization or any law or governmental regulation.


8. Expenses. All costs and expenses incurred in connection with this Agreement will be paid by the party incurring such costs and expenses.


9. Attorney’s Fees. In the event that any party institutes any legal suit, action or proceeding, including arbitration, against the other party to enforce the covenants contained in this Agreement (or obtain any other remedy in respect of any breach of this Agreement, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys' fees and expenses and court costs.


10. Arbitration. (a) Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in Texas, in accordance with the rules of the American Arbitration Association then in effect by one (1) arbitrator. (b) Judgment may be entered on the arbitrator’s award in any court having jurisdiction. The arbitrator shall not have the power to aware any punitive damages.


11. Further Assurances. Each of the parties hereto will execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof.


12. Notices. (a) For a notice or other communication under this agreement to be valid, it must be in writing and delivered:

(1)

by hand,

(2)

by national transportation company, with all fees prepaid, or

(3)

by registered or certified mail, return receipt requested and postage prepaid.


(b) Subject to section 7, a valid notice or other communication under this agreement will be effective when received by the party to which it is addressed. It will be deemed to have been received as follows:


(1)

If it is delivered by hand, delivered by a national transportation company, with all fees prepaid, or delivered by registered or certified mail, return receipt requested in postage prepaid, upon receipt as indicated by the date on the sign receipt; and

(2)

If the party to which it is addressed rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change in address for which no notice was given, then upon that rejection, refusal, or inability to deliver.


(c) For a notice or other communication to a party under this agreement to be valid, it must be addressed using the information specified below for that party or any other information specified by that party in the notice in accordance with this section.


To Cyphr:
Cyphr, Inc.
Attn: Dawson Barksdale, CEO
211 N. Ervay St.
Suite 200
Dallas, Texas 75201
dawson@getcyphr.com
 
To Company:
[Name]
[Address]
[Email Address]


(d) If they notice or other communication address to a party is received after 5:00 PM on a business day at the location specified in the address for that party, or on a day that is not a business day, then the notice will be deemed received at 9:00 AM on the next business day.


13. Interpretation. For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to sections, schedules and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits, if any, referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.


14. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.


15. Modification. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.


16. Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.


17. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.


18. Cumulative Remedies. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise, except to the extent expressly provided herein to the contrary.


19. Equitable Remedies. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.


20. Assignment. Neither party may assign any of its rights, or delegate any of its obligations hereunder, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the assigning or delegating party of any of its obligations hereunder.


21. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted successors and permitted assigns.


22. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.


23. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.


24. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would cause the application of Laws of any jurisdiction other than those of the State of Texas.


25. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party's reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The party suffering a Force Majeure Event shall give notice within three (3) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.


26. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.


27. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.




The parties are signing this agreement on the date stated in the introductory clause.
Cyphr Inc.


By:


I, hereby accept that I am an authorized party to act on behalf of the aforementioned "Company". I understand the information entered above is legally binding and I accept full responsibility with any charges or fees incurred with our use of Cyphr.
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