Residual Buyout - Terms and Conditions

This Residual Buyout Offer Terms and Conditions (this “Agreement”), dated as of the date the Residual Buy-Out Offer is signed by Nuvei (the “Effective Date”), is entered into between the entity listed on the Residual Buy Out Offer (“Seller”), and Nuvei Technologies, Inc. (“Nuvei”), a Delaware corporation, located at 1375 N. Scottsdale Rd., Suite 400, Scottsdale, Arizona, 85257.  Nuvei and Seller may be referred to individually as “Party,” and collectively as “Parties.”  Capitalized terms used herein but not otherwise defined shall have the same meanings assigned to those terms in the Seller Agreement (defined below).

            WHEREAS, Nuvei and Seller are parties to that certain Seller Agreement, as dated and defined on the Residual Buy-Out Agreement Offer, which is fully incorporated herein by reference (the “Seller Agreement”), under which Nuvei agreed to pay Seller compensation based on revenue from Merchants, as defined in the Seller Agreement, in connection with marketing services provided by Seller pursuant to the Seller Agreement.

            WHEREAS, Seller desires to sell to Nuvei all of its right, title and interest to the Purchased Residuals (as defined below) as a result of such referrals made by Seller to Nuvei under the Seller Agreement (each, a “Buyout Merchant”), and Nuvei desires to purchase all such right, title and interest to the Purchased Residuals and the Buyout Merchants, subject to the terms set forth below.

            NOW, THEREFORE, in consideration of the covenants and the mutual promises set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Sale and Transfer.  On the terms and subject to the conditions set forth in this Agreement, and effective as of the Effective Date, without any further action by Seller or Elavon, Seller agrees to irrevocably sell, assign and transfer to Nuvei, free and clear of all liens, mortgages, charges, encumbrances, security interests, equities, claims and impediments (collectively, “Liens”), and Nuvei agrees to purchase and accept all of Seller’s right, title, and interest in all payments due to Seller pursuant to the Seller Agreement (as amended) for all Merchants solicited by Seller to Nuvei, together with any other compensation or payments payable by Nuvei to Seller, directly or indirectly, pursuant to the Seller Agreement for all Merchant transactions taking place, or Merchant fees accrued, on or after the Effective Date, whether now existing, or hereafter arising (collectively, the “Purchased Residuals”). Seller shall, at any time after the Effective Date and without further consideration execute and deliver such further instruments of assignment, transfer or assumption and take such further action as the other may reasonably request in order to more effectively transfer, reduce to possession or record title to the Purchased Residuals in favor of Nuvei.  Seller shall promptly notify Nuvei of any change, circumstance or event which may prevent Seller from complying with any of their respective obligations hereunder.

2. Consideration.  In exchange for the Purchased Residuals, and subject to the terms and conditions herein, Nuvei and Seller agree that Nuvei will pay the Seller an upfront payment of the price listed on the Residual Buy Out Offer (“Purchase Price”).  Seller acknowledges that Nuvei may, but is not required to, file a UCC-1 Financing Statement evidencing the sale of the Purchased Residuals in accordance with the Uniform Commercial Code.  

3. Release.

a. Nuvei is hereby absolutely released and forever discharged from any obligation to pay any Purchased Residuals to Seller.

b. Seller releases Nuvei and its affiliates, successors, assigns, transferees, officers, directors, employees, representatives, agents, independent contractors, and attorneys from any claims or causes of action arising from transactions, occurrences or events leading up to the negotiation of this Agreement, damages, charges, costs, demands, expenses, rights, offsets, recoupments, liabilities, and obligations, whether direct or derivative, direct or indirect, known or unknown, existing as of the date hereof under the Seller Agreement.

4. Excluded Assets and Liabilities. Nuvei is expressly not agreeing, and under no circumstances shall Nuvei be obligated, to pay, discharge or assume any liability of the Seller or its principals or affiliates, and none of the Purchased Residuals shall be or become liable for or subject to any liabilities, obligations, expenses, or commitments of Seller or its principals or affiliates, of any kind, whether accrued or contingent, recorded or unrecorded, known or unknown.

5. Representations and Warranties.  As a material inducement to Nuvei to enter into this Agreement, and with the understanding that Nuvei is relying thereon, Seller represents and warrants to Nuvei as follows:

a. Seller has good and unencumbered title to the Purchased Residuals, free and clear of any Liens, and Seller has no knowledge of and has not received any notice of any claim or alleged claim by any other person or entity to all or any portion of the Purchased Residuals.

b. Seller has not received notice, either written or oral, that any of the Merchants intend to discontinue the services of Nuvei or not renew any contract with Nuvei.

c. Seller is duly organized, validly existing and in good standing under the laws of its state of organization and has the power to own its properties and assets and carry on its operation of its business as it is presently being conducted.  The Seller is qualified to do business and is in good standing in those states where the business of the Seller requires qualification.  The Seller has the power and authority to enter into and to perform all of their obligations under this Agreement, to sell the Purchased Residuals and to execute, deliver and perform all of its obligations under all of the agreements to be executed and delivered by it in connection with the transactions contemplated by this Agreement.  The execution, delivery and performance of this Agreement by the Seller do not conflict with or result in a breach or default under any of the terms, conditions, or provisions of the Seller’s governing documents.  The execution, delivery and performance of this Agreement by the Seller do not, and the consummation of the transactions contemplated by this Agreement will not, violate any provision of, or result in the acceleration of any obligation under, any mortgage, lease, agreement, instrument, order, license, arbitration award, judgment or decree to which the Seller is a party or which concerns the Purchased Residuals.  This Agreement constitutes, and upon their execution and delivery, the other agreements to be executed and delivered by the Seller will constitute, the valid and binding obligations of the Seller, enforceable against the Seller in accordance with its terms.

d. d. Seller is not obligated to pay commissions, residuals or other compensation to referral sources, agents, sub-ISOs or any other party in connection with the Purchased Residuals or the Merchants, nor has Seller made any commitment or done any act that would create any liability to any person other than themselves for any brokerage, finder’s or similar fee or commission in connection with this Agreement or the transactions contemplated herein.  

6. Survival of Warranties and Representations.  All of the warranties and representations made by the parties in this Agreement shall survive the closing and remain operative and in full force and effect and may be relied upon regardless of any other information, or any investigation or inquiry, by or on behalf of the party to whom the warranty or representation is given.

7. Non-Solicitation.  

a. During the period beginning as of the Effective Date and for ten (10) years thereafter, Seller and its successors in interest, assigns, officers, directors, employees, principals, agents and affiliates shall not (i) directly or indirectly solicit, recruit or consult with any Merchants for purposes of marketing, promoting, selling or providing payment card processing and related services or similar services or products that compete directly or indirectly with those provided by Nuvei to any Merchants, wherever located, or (ii) interfere with, disrupt or attempt to disrupt any current business relationship, contractual or otherwise, between Nuvei and any Merchants, potential or prospective customer or merchant, agent or employee of Nuvei, or any relationship pursuant to which Nuvei does, will or could receive revenue in relation to any Merchants.  

b. Seller agrees that during the period of ten (10) years following the Effective Date, it will not at any time, directly or indirectly, communicate, furnish, divulge or disclose to any individual, firm, association, partnership or corporation (except to its accountants or attorneys), any knowledge or information with respect to any matters concerning or relating to the Merchants or the Purchased Residuals, including but not limited to, copies or originals of any information supplied to Nuvei or the names and contact information for any of the Merchants.  Furthermore, Seller agrees to keep the terms of this Agreement and the information concerning the transactions described herein confidential, and shall not, in any way whatsoever, disclose the terms of this transaction to any third party, except to its owners, lenders, affiliates, accountants or attorneys, without the prior written consent of Nuvei.

c.     Seller covenants and agrees that, during the term of this Agreement, Seller, nor any of its affiliates, subsidiaries, agents or downstream agents (individually, a “Restricted Party” and collectively, the “Restricted Parties”), shall solicit or contact any Recruited Merchant for the purpose, directly or indirectly, providing or receiving transaction processing services and other related products and services provided by Nuvei and its affiliates (the “Merchant Services”).  If a Buyout Merchant initiates contact or attempts to initiate contact, or engages or attempts to engage any of the Restricted Parties for the purpose of, directly or indirectly, providing or receiving Merchant Services during the duration of this Agreement, such Restricted Parties will inform any Buyout Merchant that such Restricted Party is contractually prevented from contracting, engaging or entering into a relationship with any Buyout Merchant, by responding that:

          “Under the terms of our agreement with Nuvei, our company is contractually prohibited from discussing a business relationship with you.”

d.     The parties to this Agreement, and under this Section 7 Non-Solicitation, do not intend this section to benefit or create any right or cause of action in or on behalf of any person other than Seller and Nuvei.

8. Confidentiality.  Unless otherwise required by law, Seller agrees that during the period of ten (10) years following the Effective Date, it will not voluntarily at any time, directly or indirectly, communicate, furnish, divulge or disclose to any individual, firm, association, partnership or corporation except, to its accountants or attorneys, any knowledge or information with respect to any matters concerning or relating to the Merchants or the Purchased Residuals, including but not limited to, copies or originals of any information supplied to Nuvei or the names and contact information for any of the Merchants.  Furthermore, the parties hereto agree to keep the terms of this Agreement and the information concerning the transactions described herein confidential, and shall not, in any way whatsoever, disclose the terms of this transaction to any third party, except to its owners, lenders, affiliates, accountants or attorneys, without the prior written consent of the other party; provided, that either party may disclose the terms of this Agreement as required by law and for the purpose of enforcing this Agreement.

9. Indemnification; Set-Off.  Seller hereby agrees to indemnify and hold Nuvei, it affiliates, their respective successors and assigns, and their respective officers, directors, employees, consultants and agents (each, a “Nuvei Indemnified Person”) and defend and hold each Nuvei Indemnified Person harmless from all liabilities, losses, costs or expenses that it may experience from any breach of any covenant, representation or warranty made hereunder, or any liability of Seller not expressly assumed herein.  In addition to any other remedy permitted by this Agreement, Nuvei shall have the right to offset any obligations or liabilities of Seller due to Nuvei under this Agreement against any payments due to Seller from Nuvei or its affiliates under any agreement to which Seller is a party. For greater certainty, the indemnification obligations herein shall supplement and not replace those set forth in the Seller Agreement.

10. Notices.  Any notice or demand required to be given will be given in writing and shall be hand delivered, emailed, or mailed by certified mail, postage prepaid, to the address set forth below, or as the Parties may hereinafter substitute.  Notice shall be deemed received on the date of delivery or the date of the email so long as written documentation verifies such delivery.

NUVEI:

Address:
1375 N Scottsdale Rd.
Suite 400
Scottsdale, Arizona 85257

Email:
Legal.NA@Nuvei.com

PROVIDER:

Address:
to the address specified on the Residual Buyout Offer.

Email:
to the email address specified on the Residual Buyout Offer.

11. Taxes.  All sales or transfer taxes, including stock transfer taxes, document recording fees, real property transfer taxes, and excise taxes, arising out of or in connection with the consummation of the transactions contemplated hereby, shall be paid by Seller.

‍12. Governing Law.  This Agreement will be governed by the laws of the State of Delaware without reference to any jurisdictions conflict of laws principles that would require application of law of a different jurisdiction.

13. BINDING ARBITRATION. EXCEPT AS SET FORTH IN SECTION 12 OF THIS AGREEMENT, ANY DISPUTE OR CLAIM BETWEEN THE PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE FULLY AND FINALLY RESOLVED BY BINDING ARBITRATION IN THE STATE OF DELAWARE IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES AND PRACTICES OF THE AMERICAN ARBITRATION ASSOCIATION FROM TIME TO TIME IN FORCE AND EFFECT. A SINGLE ARBITRATOR SHALL PREPARE WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW. IT IS MUTUALLY AGREED THAT THE WRITTEN DECISION OF THE ARBITRATOR SHALL BE VALID AND BINDING; PROVIDED HOWEVER, THAT THE PARTIES HERETO AGREE THAT THE ARBITRATOR SHALL NOT HAVE THE AUTHORITY TO AWARD PUNITIVE OR EXEMPLARY DAMAGES AGAINST ANY PARTY. EACH OF THE PARTIES HERETO FURTHER AGREES THAT IT WILL NOT BECOME A MEMBER OF ANY CLASS-WIDE LITIGATION OR ARBITRATION AND WILL NOT INITIATE ANY CLASS ACTION LITIGATION OR CLASS ARBITRATION AGAINST THE OTHER PARTY.

14. Entire Agreement; Binding Agreement; Severability.  This Agreement and the instruments and documents called for by this Agreement, constitute the whole agreement of the parties and supersede any commitment, agreement, letter of intent, memorandum, or understanding previously made by the parties or any of them, with respect to the subject matter of this Agreement. This Agreement, once fully executed, will be binding upon the parties hereto, their heirs, successors, executors and assigns. Any provision of this Agreement that is unenforceable will be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.

15. Waiver, Amendment or Modification.  Any waiver, amendment or modification of any provisions of this Agreement, or any right, power or remedy hereunder or thereunder will not be effective unless made in writing and signed by the party against whom enforcement of such waiver, amendment or modification is sought.  No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder will operate as a waiver thereof in the future.

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EXHIBIT A

Residual Buyout Offer

<<Date>>

‍

Sent Via Email and DocuSign to:

<<email>>

<<Name>>

<<Address>>

<<City, State, Zip>>

Re: Offer to Purchase Residual Portfolio for <<_____>>

Dear <<Partner>>,

We noticed that your account with us has been inactive for some time.  Because you may not have the time to provide your merchants with the time and attention they need, Nuvei is willing to offer you <<_____>> (the “Purchase Price”) via direct deposit to purchase your residual portfolio.  

You may accept this offer by signing this letter, and within 24 hours Nuvei will deposit the funds into your bank account using direct deposit and the account we have on file.

This offer is valid for 15 calendar days from the date of this letter.  After 15 days from the date listed above, Nuvei’s offer will expire and you will no longer be eligible to receive the amount listed above in exchange for purchasing your portfolio.  

If this offer expires you may not receive the same amount in the future should you be interested in selling your residual portfolio to Nuvei.

Sincerely,

<<Nuvei>>

<<email>>

<<phone>>