Search results

Master Subscription Agreement (2/8/21)

These terms are inapplicable to customers who signed contracts starting on or after March 1, 2024 and that incorporate by reference the terms at https://www.nmi.com/policy/platform-terms-conditions/. Please refer to your order form and reach out to your customer account manager for questions.

Last update: 2/8/2021

Master Subscription Agreement – 2/8/2021

Master Subscription Agreement
IRIS Terms and Conditions

These terms and conditions (including the cover page hereof any schedules, exhibits or addenda hereto, collectively the “Agreement“) are an agreement between Integrated Reporting is Simple, LLC, a Nevada limited liability company with an office at 401 Ryland Street, Suite 200-A, Reno NV 89502 (“IRIS“, “us“, “we” or “our“) and you, being the entity that accepted them (“you“, “your” or “ISO“). This Agreement is effective as of the date of signature of the ISO, as set forth on the first page of this Agreement (the “Effective Date“).

THIS IS A LEGALLY BINDING AGREEMENT, PLEASE READ IT CAREFULLY. IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, PLEASE CONTACT IRIS THROUGH THE SITE. WE VALUE YOUR INPUT. YOU MAY ONLY ENTER INTO THIS AGREEMENT IF YOU ARE DOING SO IN YOUR CAPACITY AS A BUSINESS AND NOT AS AN INDIVIDUAL CONSUMER.

Definitions.

For the purposes of this Agreement, the following terms shall have the definitions set out below:
1. “Account Agreement” shall mean an agreement between an Acquiring Bank an Account and either ISO or Processor, or both, pursuant to which the Account receives Account Services.
2. “Account Application” shall mean the application or portal (electronic or paper) used by any of a Processor, Acquiring Bank or ISO to ascertain whether a given potential Account is eligible to procure the Account Services and includes the terms of the applicable Account Agreement, such as they may be from time to time.
3. “Account Information” shall mean any and all information concerning a given Account, including, without limitation, such information as a Processor may require to be included in an Account Application.
4. “Account Portal” is a means of accessing the Service available to certain Accounts of the ISO as per the terms of this Agreement and an Order Form.
5. “Account Principal/Customer” means an individual principal or guarantor of any Account.
6. “Account Services” means services supplied to Accounts by Processor, Acquiring Bank or ISO, such as, for example purposes only, payment processing services for payment card transactions.
7. “Account” means a merchant or other business that wishes to or has agreed to procure Account Services or Processor Services as a result of the direct or indirect solicitation by ISO or any of its Users.
8. “Acquiring Bank” means any financial institution acting as part of a payment network and sponsor of ISO or ISO’s Affiliates.
9. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control“, for purposes of this definition, means direct or indirect ownership or financial influence of more than 50% of the voting interests of the subject entity.
10. “Dialer Acceptable Use Policy” has the meaning set out below in Section 2.4.6 below.
11. “Dialer Services” means that part of the Services that integrate certain telecommunication capabilities therein, as determined by IRIS from time to time.
12. “E-Sign Service” means that Service of assisting the ISO in obtaining electronic signatures of certain documents, as described more fully below.
13. “Emergency Services” means services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 Services.
14. “Fees” shall be those fees and expenses for which ISO is liable to pay IRIS in consideration of the Services for itself and all its Users. Fees are defined herein and are posted from time to time on the Site. In the event of any inconsistency between the Fees set out herein and those posted on the Site, the latter shall prevail.
15. “Intellectual Property Rights” means all intellectual property rights and all tangible embodiments of such rights, wherever located, including but not limited to the following: (i) all trademarks, service marks or other designations of origin, including all registrations and related applications and all goodwill associated with any of the foregoing; (ii) all copyrights, moral rights, and other rights in works of authorship, including all registrations and related applications; (iii) all inventions and ideas, whether patentable or not, and all patent rights, patents, and patent applications; (iv) all know-how, trade secrets, confidential information, and other proprietary rights and information; and (v) all other rights covering intangible property recognized in any jurisdiction.
16. “ISO Data” means any and all electronic data or information submitted or transferred by an ISO, a User, an Acquiring Bank or a Processor, to IRIS through the use of the Services by the ISO or any of its Users, including, as it relates to an Account or any Account Principal/Customer, name, address, date of birth, social security number, driver’s license number, account number, credit or debit card number, or a personal identification number or password that would permit access to the Account or Account Principal/Customer’s account, or any combination of components of Account or Account Principal/Customer information that would allow someone to log onto or access Account’s or Account Principal/Customer’s account, such as a username and password, password or transaction information. ISO Dialer Data is, without limitation, ISO Data. ISO Data does not include data that has been deleted from the Services or any data or libraries used by IRIS to operate the Services or that is otherwise provided to IRIS other than by ISO or its Users or Processor in relation to ISO. For the avoidance of doubt, ISO Data is confidential and proprietary information of ISO.
17. “ISO Dialer Data” means data and other information made available to IRIS through the use of the Dialer Services under this Agreement, including call records, audio recordings, recording transcriptions, SMS records, and SMS message content.
18. “ISO Site” means the web site or web sites owned or other electronic accounts, operated or controlled by the ISO or otherwise used by ISO, its Users or Accounts in conjunction with the business of the ISO.
19. “ISO Systems” means the computing systems owned, operated or controlled by the ISO or otherwise used by the ISO, its Users or Accounts in conjunction with the business of the ISO.
20. “Laws” shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by-laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction.
21. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
22. “Order Form” means that paper or electronic form provided by IRIS and completed by ISO for the purpose of ordering certain additional Services wherein the Fees applicable to the Service shall be set out, all of which forms, when accepted by IRIS in writing, are hereby incorporated in this Agreement by reference.
23. “Payment Network” means any and all of Visa Inc., MasterCard Incorporated, Discover Financial Services, American Express Company, JCB, Diners, NACHA, any Affiliate of the foregoing and other payment networks providing services used by Processor and or Accounts.
24. “Processor Agreement” means a written agreement entered into between ISO, Processor and possibly other entities, such as an Acquiring Bank, pursuant to which ISO and the Processor and/or Acquiring Bank provide certain services, such as, for example, purposes only, the solicitation of potential Accounts. Processor Agreement shall include any and all terms and conditions and privacy policies applicable to use of the Processor Site, such as they may be from time to time, as well as all applicable Rules and Laws.
25. “Processor Services” shall mean those services provided by a Processor under an Account Agreement or the Processor Agreement for the ISO or for Accounts.
26. “Processor Site” means a web site or FTP address or other electronic portal designated by Processor or its designee that ISO is to use for the purposes of any of obtaining electronic reporting concerning Accounts and other Account Information relevant to the Processor Services, the submission of Account Information for Account Applications or other exchanges of information between Processor and ISO or Users.
27. “Processor” means an entity, that in the course of a valid and ongoing contractual relationship with the ISO, in the form of a Processor Agreement, provides Processor Services and electronic reporting to the ISO related thereto.
28. “Rules” means the rules and regulations of Payment Networks, such as they may be from time to time, other rules and regulations generally applicable to the business of the ISO and all applicable Laws.
29. “Services” means the electronic reporting services provided by IRIS pursuant to this Agreement including those that ISO has elected to use through an Order Form, the Site, by signing a paper version of this Agreement. The Services are more fully described on the Site, such as it may be from time to time, and may include, depending on ISO elections: the TurboApp, E-Sign Service and Dialer Service.
30. “Subscription Term” shall mean the term for which Services are purchased by ISO in respect of active merchants within a pricing tier.
31. “Subscription” shall mean the entitlement of an individual User to use the Services for a Subscription Term specified on the Order Form.
32. “Term” shall mean the term of this Agreement for the length of time specified on the Order Form that shall begin as of the Effective Date and shall terminate as of the end of the last Subscription Term to end or such earlier time as may be provided for herein.
33. “Third‐Party Applications” means online, applications and offline software products that are provided by third parties such as, but not limited to, feeds of data from Acquiring Banks, Processors, CRM systems, or banks that interoperate with the Services and are identified as third-party applications within the Site, such as they may be from time to time.
34. “TurboApp” means that part of the Services that permits Users to transmit Account Information collected by Users from potential Accounts for Account Applications.
35. “Users” means individuals or entities who: (i) are authorized by ISO to use the Services; (ii) for whom Subscriptions have been purchased by ISO; (iii) who have agreed to the terms hereof; and (iv) who have been supplied user identifications and passwords for the Services by ISO. Users may include, at the discretion of ISO, ISO employees, consultants, contractors and agents, Accounts; or other third parties with which ISO transacts business for which the Services are a suitable complement. ISO has the right to initiate and remove access to the Services for each of its Users. As between ISO and each of its Users, ISO shall dictate which of the Services herein each User may be entitled to use at any given time if any.
Services
1. Services. IRIS shall make the Services available to ISO and applicable Users pursuant to this Agreement and Order Forms during the Term of this Agreement. Services are provided subject to, without limitation (the “ISO Conditions”): (i) payment by ISO of all applicable Fees; (ii) adherence of the ISO to the terms of this Agreement; (ii) no prohibition on IRIS providing the Services in respect of ISO or its Processor; (iii) adherence of the ISO to the terms and conditions of the Processor Site; and (iv) adherence of the ISO to the terms of the Processor Agreement. ISO agrees that the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by IRIS regarding future functionality or features or the Services. IRIS reserves the right to modify the Services by notice through the Services. IRIS also reserves the right to cease providing the Services on at least sixty (60) days written notice.
2. TurboApp. If ISO has elected to use TurboApp, then IRIS shall allow Users to access, complete, inspect and modify certain Account Information fields within electronic facsimiles/reproductions/transmissions of Account Applications presented to the User through the Services. In so doing, the ISO covenants that all of its Users shall input only Account Information that is complete and accurate and that the applicable Acquiring Bank and, as applicable, Processor permits to be incorporated into the Services. IRIS shall assume no liability in respect of any Account Information that is incorrect, either through ISO, User or Processor error or otherwise, all of which information ISO undertakes to scrutinize and review prior to submission to the Processor through TurboApp or otherwise.
  1. Account Application Facsimiles / Reproductions / Transmissions. As part of the setup of TurboApp, ISO will be asked to assist in accepting or creating a facsimile/reproduction/transmission of the Account Application. ISO hereby licenses to IRIS the right to use the information, names, and logos that it is instructed to include or that ISO accepts to be included in the TurboApp and shall indemnify and hold IRIS harmless for any claims by Processor or any other third party in respect of the use thereof within the Services for ISO. ISO assumes the sole and exclusive responsibility for any discrepancies that may occur between the TurboApp Account Application and that which may be mandated by an Acquiring Bank and, as applicable, Processor.
  2. Submitting Account Applications. Submitting Account Information to an Acquiring Bank and/or Processor through IRIS is a multi-stage process that requires the close attention of the ISO and User so as not to submit false or erroneous information to the Acquiring Bank and/or Processor. Whether in good faith or not, the submission of false, erroneous or misleading information on an Account Application can result in grave and irreparable damages to the ISO under its Processor Agreement, the Rules or otherwise. Any and all mistakes or fraud in the submission of Account Information by ISO or any User shall be the sole and exclusive responsibility of the ISO and Users. ISO and Users shall indemnify and hold IRIS harmless from and against any and all liability in respect of the foregoing. Without limitation to any of the other obligations of the ISO and each User under this Agreement, when a User clicks ‘Submit’ in relation to given Account Information for an Account Application it shall be required, at every instance, to agree with the following, which shall form part of this Agreement (the “User Submission Certification”):”IMPORTANT AND LEGALLY BINDING TERMS: BY PUSHING THE ‘SUBMIT’ BUTTON BELOW, YOU ARE REPRESENTING THAT YOU HAVE DONE AND THAT YOU AGREE WITH ALL OF THE FOLLOWING:
    1. YOU ARE RESPONSIBLE FOR THE MERCHANT INFORMATION YOU SUBMIT;
    2. You have carefully reviewed all information relating to the merchant and verified that it is both true and accurate. You have solicited the merchant in full compliance with your agent or ISO agreement;
    3. You have undertaken all site inspections or other verifications of the merchant required by your ISO and processor;
    4. You acknowledge that once the information is submitted through this form it cannot be retracted or changed through IRIS; it can only be changed through your direct correspondence with your ISO and processor;
    5. ANY AND ALL CHANGES TO MERCHANT PRICING AFTER THE SUBMISSION OF THIS APPLICATION MUST BE IMPLEMENTED BY YOU DIRECTLY WITH YOUR PROCESSOR AND NOT THROUGH IRIS. IF INTERCHANGE OR OTHER PROCESSOR PRICING CHANGES, AND YOU DO NOT INSTRUCT YOUR PROCESSOR DIRECTLY TO CHANGE MERCHANT PRICING, YOU MIGHT PAY FOR THE INCREASE, NOT YOUR MERCHANT.
    6. You have obtained a signature of the merchant and its guarantor(s) permitting you to submit their information in relation to this merchant agreement application;
    7. You have in your possession a valid electronically signed merchant agreed or a hard copy of the merchant agreement wherein all of the information in this form has been completed by the merchant;
    8. IRIS will have no responsibility for your errors, errors of the ISO, User errors or errors of your processor in respect of the information you are submitting, all of which is your responsibility;
    9. From time to time processor systems may change, which changes may prevent IRIS from submitting all or submitting accurate versions of the information you are about to submit. The sole responsibility of IRIS in this regard will be to use commercially reasonable efforts for its services to be consistent with processor merchant application submission technical criteria, but IRIS does not guarantee that the merchant information will be submitted accurately or completely;
    10. After the merchant information has been submitted, you will verify through processor’s reporting system that the information is accurate and complete and you will also update merchant pricing directly with the processor and not through IRIS when a processor or other pricing changes occur;
    11. You have consent from your Processor for ISO and Users to submit the information that you are about to submit;
    12. You reaffirm that the agreement with your ISO and processor is active for which you have solicited the merchant; and
    13. YOU HEREBY REAFFIRM YOUR AGREEMENT WITH ALL OF THE IRIS “TERMS AND CONDITIONS.”
  3. ISO Third-Party Beneficiary of User Certification. The parties hereto agree that the ISO is deemed to be a third-party beneficiary in respect of each User Submission Certification. IRIS shall, however, have no liability to ISO or any User in respect of any dispute between the two as to a User Submission Certification or otherwise and ISO shall indemnify and hold IRIS harmless from and against any claims related to a User Submission Certification.
  4. Keeping Account Pricing Up to Date. From time to time, Processors and other third parties involved in Account Agreements and Processor Services, will increase or otherwise amend the pricing applicable to Accounts and ISO for their services (each a “Account Price Change“). ISO acknowledges and agrees that: (i) once a given Account Application has been submitted through TurboApp, the only means by which to implement an Account Price Change for the Account is for the ISO to instruct the Processor/Acquiring Bank directly to make such change; and (ii) if the ISO fails to implement an Account Price Change through direct communication with its Processor (and not through IRIS) the change will not necessarily be implemented for Accounts and the ISO may be liable to pay for the change by way of a direct and potentially material reduction in its compensation under a Processor Agreement. IRIS does not provide any Account Price Change functionality.
3. E-Sign Service.
  
  The U.S. Federal Electronic Signatures in Global and National Commerce Act (E-Sign), provides that, subject to certain conditions, electronically executed documents are legally binding in the same manner as are hard copy documents executed by hand signature (“E- Sign Act“). Subject to payment of the applicable Fees, IRIS shall provide the E-Sign Service to ISO.
  1. The E-Sign Service allows ISO to create electronic records (each an “ISO Electronic Records“). Subject to the parameters of the E-Sign Service available on the Site, from time to time, the E-Sign Service will permit the ISO to create ISO Electronic Records and facilitate in the presentation of such documents to third parties, such as, for example, Accounts.
  2. The ISO shall assume the sole and exclusive responsibility for the content of each ISO Electronic Record. For example, if the ISO wishes to create a contract using the E-Sign Service, ISO shall provide the whole content of the contract as well as all fields that the parties to the contract are required to complete (each a “Record Field“).
  3. In the event that ISO wishes to ask third parties to enter sensitive or confidential personal information into an ISO Electronic Record, such as tax ID numbers, EIN numbers, SSN numbers, bank account or routing numbers, then ISO must use only the secure field option within the E-Sign Service for such records.
  4. When ISO has completed an ISO Electronic Record form with all disclosure, terms and Record Fields, the ISO will be able to grant third parties access to the ISO Electronic Record and obtain signatures on it through the E-Sign Service.
  5. IRIS makes no representation and assumes no liability for the legal effectiveness of any ISO Electronic Record or related signature, all of which is the exclusive responsibility of the ISO. IRIS recommends that the ISO consult legal counsel if it wishes to use the E-Sign Service to create legally binding agreements, as the enforceability of such agreements is the sole and exclusive responsibility of the ISO and not IRIS.
  6. As and when the ISO makes ISO Electronic Records available for signature by third parties, such third parties will be presented with the disclosure that applies to the E-Sign Services, which disclosure is incorporated herein by reference.
  7. ISO hereby agrees to the terms appearing at the following URL: www.echosign.adobe.com/en/tou/terms-of-use.html, which are incorporated herein by reference.
  8. After and ISO Electronic Record is signed through the E-Sign Service, depending on the preferences selected by the ISO, an electronic copy of the record may be sent by email to the ISO or the third party or may be available for access through the E-Sign Service on the Site. ISO is required to download and store on ISO Systems copies of any and all ISO Electronic Records, both signed and unsigned.
  9. ISO shall not use the E-Sign Services nor shall it permit any User to use them to create contracts other than with the full and enlightened consent of all parties thereto.
4. Dialer Service
  1. Provision of Services. IRIS will make the Dialer Services available to ISO in accordance with this Agreement and the Dialer Service SLA. Subject to the terms and conditions of this Agreement, IRIS grants ISO a non-exclusive, revocable right to Use the Dialer Services and make them available to Users in connection with the use of the Services.
  2. ISO Dialer Data. ISO Dialer Data shall be part of ISO Data and shall be governed accordingly.
  3. Use of Dialer Services. If ISO elects to sign up for Dialer Services, ISO will be solely responsible for all use (whether or not authorized) of the Dialer Services under its Account, including for the quality and integrity of ISO Dialer Data. ISO is responsible for compliance of all its Users with the terms hereof including but not limited to those concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability. ISO will promptly notify IRIS if it becomes aware of any breach of the terms of this Agreement that may affect IRIS. ISO will take all reasonable precautions to prevent unauthorized access to or use of the Dialer Services and notify IRIS promptly of any such unauthorized access or use.
  4. Restrictions. Except as expressly provided herein in respect of Users, ISO will not transfer, resell, lease, license or otherwise make available the Dialer Services to third parties. In any event, the ISO will not offer the Dialer Services on a standalone basis. ISO will not use the Dialer Services to access or allow access to Emergency Services. ISO will ensure that the Dialer Services provided hereunder are used in accordance with all applicable laws, regulations and third party rights, as well as the terms of this Agreement, including IRIS’ Acceptable Use Policy, set out below. Specifically and without limitation, ISO will ensure that IRIS is entitled to use the ISO Dialer Data as needed to provide the Dialer Services and will not use the Dialer Services in any manner that violates any data protection statute, regulation, order or similar law.
  5. Limitations. The Dialer Services are deemed part of the Services and are subject to all the limitations of liability, restrictions, and obligations applicable to the Services in the Agreement.
  6. Dialer Acceptable Use Policy. This Dialer Services acceptable use policy (the “Dialer Acceptable Use Policy“) describes actions that IRIS prohibits when any party uses the Dialer Services. The Dialer Services may not be used in any illegal, abusive or another manner that interferes with the business or activities of any other party. The following list gives examples of prohibited actions/activities. Each item on the list below and similar activities are also prohibited in respect of the Services, more generally. This list is provided by way of example and should not be considered exhaustive:
    1. Attempting to bypass or break any security mechanism on any of the Dialer Services or using the Dialer Services in any other manner that poses a security or service risk to IRIS or any of its users.
    2. Testing or reverse-engineering the Dialer Services in order to find limitations, vulnerabilities or evade filtering capabilities.
    3. Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Dialer Services or any other conduct that adversely impacts the availability, reliability or stability of the Dialer Services.
    4. Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs.
    5. Using the Dialer Services in any manner that violates any applicable industry standards, Intellectual Property Right in the Services to ISO other than the License, and that all Intellectual third party policies or requirements that IRIS may communicate to its users, including Marketing Association or any other accepted industry associations, carrier guidelines or other industry standards.
    6. Engaging in any unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spam laws and regulations including, but not limited to, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.
    7. Using the Dialer Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls SMS or text messages, voice mail, or faxes.
    8. Using Dialer Services to harvest or otherwise collect information about others, including email addresses or phone numbers.
    9. Using Dialer Services to engage in fraudulent activity with respect to third parties.
    10. Violating or facilitating the violation of any local or foreign law, including laws regarding the transmission of data or software.
    11. Taking any action to encourage or promote any activity prohibited under this Acceptable Use Policy.
    12. Transmitting any material that infringes the intellectual property rights or other rights of third parties.
    13. Transmitting any material that is libelous, defamatory, discriminatory or otherwise malicious or harmful to any person or entity.
    14. Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.
5. Subscriptions. Unless otherwise specified in an Order Form: (i) Services are purchased by the ISO as Subscriptions; (ii) additional Subscriptions may be added during the Subscription Term at the pricing of the currently applicable tier that is specified in relation to the Subscriptions on the Order Form.
6. License. The right to use the Services is granted to the ISO as a limited, non-transferable, non- exclusive license (the “License“). Subject to the terms of this Agreement, the License is hereby granted for ISO and each User only for the shorter of their Subscription Term or for the Term hereof. ISO will have the right to activate or deactivate the Services in respect of any given User at any time, subject to the terms of this Agreement.
7. Limitations on License. The Services shall be used by ISO solely for its internal business purposes and ISO acknowledges and agrees that IRIS does not convey any right, title, interest or Intellectual Property Right in the Services to ISO other than the License and that all Intellectual Property Rights relating to the Services shall be the property of IRIS. ISO hereby acknowledges and agrees that the License granted hereby is a right to use the Services through the Site only. ISO further agrees not to decompile, reverse engineer, or otherwise seek or utilize any expression of the Services in other than object code form. ISO shall not alter or otherwise modify the Services. ISO shall not itself or permit any third party to use the Services to gain access to information to which ISO does not have the rightful title and shall immediately notify IRIS of any actual or attempted use of the Services other than as expressly permitted herein. Subject to the limited rights expressly granted hereunder, IRIS reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to ISO hereunder other than as expressly set forth herein. The License may not be used to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
8. Suggestions. IRIS shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by ISO, including Users, relating to the operation of the Services.
9. ISO Security. ISO shall maintain the security of the ISO Site and ISO Systems so that it is up to or exceeding industry customs and norms. Without limitation, ISO shall obtain and maintain a Secure Sockets Layer certificate (“SSL Certificate”) in respect of the ISO Site. Lack of an SSL Certificate shall be grounds for IRIS to suspend ISO and User access to the Services. ISO shall monitor the use of the Services to verify that none of the ISO Site or ISO Systems are being used by any User or any third party to interfere in IRIS System operations or to obtain any information or data to which they are not entitled.
10. Federal Government End Use Provisions. IRIS provides the Services, including related software and technology, for ultimate federal government end use, solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with IRIS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or Agreement.
11. Agency. ISO hereby appoints IRIS its lawful agent and attorney in fact for the purpose of retrieving ISO Data from Processors and, through TurboApp, or otherwise, submitting Account Information to Processors, as specified through the Services. In so doing, IRIS shall collect, store and disclose ISO Data from and between Processor, ISO, and Users, as instructed by ISO and Users through the Services. If requested by a Processor, ISO will confirm in writing the agency granted in this provision which agency shall be in force for the Term hereof. ISO is wholly responsible for any wrongful disclosure of ISO Data that occurs through the Services but on instructions from ISO or a User. IRIS shall use commercially reasonable efforts to not disclose ISO Data other than as instructed through the Services.
12. Account Portal. If provided for in an Order Form, ISO may grant its Accounts access to the Account Portal. The Account Portal will enable each Account that is designated as a User by ISO to access certain ISO Data related to their individual Account and such other information as ISO may wish to share with the Account and that the Service can accommodate. An Account that is granted access to the Account Portal shall be a User and shall be bound by all the terms of this Agreement applicable to Users. IRIS will follow ISO instructions as to who can and cannot be a User in respect of a given Account, but ISO assumes responsibility for errors in identifying and granting access to Account Users.
Use of the Services
1. Support.
  1. During each Subscription Term, IRIS shall: (i) provide to ISO basic customer support for the Services; and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which IRIS shall give at least 8 hours notice via the Services and which IRIS shall schedule, to the extent practicable, during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), (b) any unavailability caused by circumstances beyond the reasonable control of IRIS or its suppliers, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving IRIS employees), internet service provider failures or delays, Processor downtime, Processor bars to IRIS access to ISO Data, data feed failures caused by Processor, delays or inaccuracy of information (each a “Force Majeure Event“) and (c) normal and anticipated downtime of the Processor data feed.
  2. ISO shall comply with all applicable Rules and all decrees of all Payment Networks and governmental authorities (including without limitation federal, state and local governments, governmental agencies and quasi-governmental agencies (each a “Regulatory Authority“) having jurisdiction over ISO. Not being an ISO, IRIS is not ordinarily in receipt of such decrees and shall not be required to comply with any Payment Network decrees that do not apply to it or of which it has no knowledge.
  3. IRIS has designed and implemented an information security program that is designed to protect ISO Data in its possession or control in accordance with the then-current Payment Card Industry Data Security Standards (together with applicable payment network data security requirements, the “PCI Standards”), and IRIS has documented all policies and procedures comprising such program (including escalation procedures for non-compliance). IRIS covenants to use commercially reasonable efforts to maintain such compliance during the Term and so long as any ISO Data remains in IRIS’ possession, and will supply ISO with its annual report on compliance as required by the PCI Standards (the “ROC”) on request by ISO.
  4. In the event IRIS discovers any unauthorized access to or fraudulent use of any ISO Data, IRIS shall take appropriate actions (in accordance with applicable Rules, contractual obligations of confidentiality to ISO and third parties and statutory obligations to third parties) to address such unauthorized access or fraudulent use, including but not limited to promptly notifying ISO, verbally and in writing, of any such incident and cooperating with ISO, Payment Networks, a Processor and/or Acquiring Bank, as reasonably requested.
  5. Subject to reasonable advance notice, ISO, Processor, Acquiring Bank, any Payment Network, or any Regulatory Authority with regulatory oversight for any of the foregoing, may, directly or through representatives, audit IRIS’ equipment, infrastructure, systems, connectivity and related procedures to assess IRIS’ compliance with the terms of this Agreement. IRIS shall supply any of the foregoing parties with such information and reasonable assistance (including, upon reasonable notice and during regular business hours, on-site inspections) as may be necessary to confirm IRIS’s compliance as required herein. IRIS shall be provided no less than thirty (30) days prior notice of any audit or on-site inspection, provided that if Acquiring Bank, Payment Network or Regulatory Authority requires that the audit or inspection be conducted in a shorter period, IRIS will use commercially reasonable efforts to accommodate such request. No such inspection or audit shall in any way entitle ISO or any Payment Network or Regulatory Authority to gain access to data in possession of IRIS other than ISO Data unless IRIS is ordered to disclose such data by a court of competent jurisdiction. All of IRIS’s out-of-pocket costs associated with any such audit shall be paid by ISO. In the event that either (1) such audit is requested by ISO or Processor (and not an Acquiring Bank, Payment Network or Regulatory Authority) or (2) such audit is requested by an Acquiring Bank, Payment Network or Regulatory Authority, but IRIS is ultimately not found to have been in breach of the terms of this Agreement, then IRIS’ reasonably allocated internal costs associated with any audit of IRIS shall also be paid by ISO at an hourly rate of $125 per hour. The parties acknowledge and agree that the determination of whether IRIS has been in breach of the terms of this Agreement may not be made until after the completion of the audit, and IRIS agrees to keep reasonably detailed internal records of its hourly internal costs and provide such records to ISO with the post-determination billing for its internal costs.
2. ISO Compliance. ISO shall: (i) be responsible for its own and its Users’ compliance with this Agreement, without relieving the obligation of each User to honor the terms hereof; (ii) be solely responsible for the accuracy, quality, integrity and legality of ISO Data and of the means by which ISO acquired ISO Data in so far as IRIS is instructed to obtain, store or submit that data from or to Processors; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify IRIS promptly of any such unauthorized access or use; (iv) use the Services only in accordance with the User Guide, published on the Site, and the Rules; and (v) regularly monitor for Account Price Changes and implement them directly with Processor and Accounts as per the procedures of the Processor and the Rules. ISO shall assume the exclusive responsibility for any and all information provided by the ISO through the Services to Accounts.
3. Limitations on Use. ISO shall not: (i) make the Services available to anyone other than Users; (ii) sell, resell, rent or lease the Services; (iii) use the Services to store, publish or transmit infringing, libelous, lewd, distasteful, unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or any Intellectual Property Rights; (iv) use the Services to store or transmit Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (vi) attempt to gain unauthorized access to the Services or their related systems or networks. ISO is responsible for keeping their Service login credentials up to date and notifying IRIS of any such changes to prevent any downtime and inaccuracy to data.
Third-Party Providers
1. Acquisition of Third-Party Products and Services. IRIS may offer Third-Party Applications for sale under Order Forms. ISO use of any Third-Party Applications and implementation, customization and other consulting services, and any exchange of ISO Data or other data between ISO and any third-party provider is solely between ISO and the applicable third-party provider. IRIS does not warrant or support any Third Party Applications, whether or not they are designated by IRIS as “certified” or otherwise, except as specified in an Order Form that has been expressly accepted by IRIS. No purchase of third-party products or services is required to use the Services.
2. Third-Party Applications and ISO Data. If ISO installs or enables Third-Party Applications for use with Services, ISO acknowledges that IRIS will be notified in writing prior to any development. IRIS may allow providers of those Third-Party Applications to access ISO Data as required for the interoperation of such Third-Party Applications with the Services. IRIS shall not be responsible for any disclosure, modification or deletion of ISO Data resulting from any such access by Third-Party Application providers. The Services shall allow ISO to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services. The Service has been designed to perform optimally with current versions of Internet Explorer, Google Chrome, Safari, and Mozilla Firefox; no commitments are made to upgrade the Services or make them compatible with any third party product or service. Use of the Service with any other Third-Party Application or plug-ins may be functional but is not guaranteed in any way by IRIS.
3. Processor Compatibility. The Services may not always be compatible with Processor systems. Changes in Processor systems will interrupt the Services. It is recommended that despite your use of the Services, you maintain familiarity with Processor ISO Data access sites so that you can retrieve necessary ISO Data from Processors notwithstanding any interruption in the Services.
4. Relationship Between ISO and User. The Rules require that any sales agent of an ISO be a party to a written agreement with the ISO. ISO represents to IRIS that is has executed written agent agreements with all of its Agents and that such agreements are valid and legally enforceable. Nothing in this Agreement shall amend or interfere in any of the terms and conditions of agreements in place between ISO and any User or any other third party. Without limitation, ISO and each User shall indemnify and hold IRIS harmless from and against any and all claims, losses or other liabilities arising in respect of any claim made against IRIS that relates to a dispute between ISO or any User and any other party. IRIS reserves the right to immediately suspend the Services to any ISO in respect of which a claim is made against IRIS that relates to any such dispute. For example, but without limitation, if a User seeks an injunction against IRIS to gain access to the Services in relation to a dispute with its ISO or otherwise, IRIS reserves the right to terminate this Agreement or suspend the Services to such ISO and all its Users. Without limitation, the ISO shall be responsible for IRIS legal fees incurred in responding to any such injunction or related claim.
Fees and Payment for Services
1. Fees. ISO shall pay all Fees through ACH. Except as otherwise specified herein or in an Order Form: (i) Fees are quoted and payable in United States dollars; (ii) Fees are based on Services purchased and not usage; (iii) In the event that ISOs add active merchants during the billing cycle that qualify for the next tier as specified in the order form, the fees for these active merchants will be prorated for the portion of the billing cycle remaining at the time the merchants are added and will be invoiced on the following billing cycle. (iv) Payment obligations are non-cancelable and Fees paid are non-refundable. Fees are based on periods that begin on the Subscription Term start date and each billing anniversary thereof; (v) In the event that this Agreement is terminated prior to the end of the then-current Term, other than for material and uncured default by IRIS, ISO shall remain liable for all Fees that would apply through to the end of the current Term. At the time of termination IRIS will calculate the effective monthly average of the fees that were paid to IRIS by ISO per month for the past 3 consecutive months and multiply the result by the remaining time left in ISO’s Subscription Term which is the “Early Termination Fee” and will be paid by ISO to IRIS within thirty (30) days of Termination.
2. Start of Fees. IRIS will perform an ACH debit to ISO’s bank account for the amount specified as due on the Order Form and at the time specified on the Order Form.
3. Invoicing and Payment. IRIS will provide invoices to ISO based on the billing term specified on the Order Form. ISO is responsible for maintaining complete and accurate billing and contact information with IRIS. In the event of a dispute regarding any invoice, ISO and IRIS agree to work together in good faith to resolve such dispute.
4. Sales Tax. IRIS and ISO acknowledge and agree that to the extent that the Service is subject to any state sales and use taxes, IRIS has a legal obligation to collect such taxes from ISO and to remit the same to the appropriate tax collection authorities. ISO agrees to pay any and all applicable state sales, use, gross receipts, and other similar taxes and charges. ISO has no liability for any taxes based upon IRIS’s income under the Agreement.
IRIS SECURITY, CONFIDENTIALITY AND NON-SOLICITATION UNDERTAKINGS
1. Protection of ISO Data. IRIS shall use commercially reasonable efforts to not disclose ISO Data to third parties except as compelled by Law, or as permitted by ISO. IRIS is not, however, responsible for: (i) the loss or destruction of any ISO Data by any means other than by the gross negligence of IRIS; (ii) breach of ISO Data due, in whole or in part to an unsecure connection being used by ISO, a User, Account or Processor, or any of their authorized or unauthorized designees; or (iii) breach of ISO Data on account of a breach in the ISO Site or ISO Systems. It is the responsibility of ISO to make periodic backups of ISO Data onto ISO Systems in so far as ISO wishes to protect itself from the loss thereof. ISO acknowledges that it is an industry best practice to backup ISO Data onto its own ISO Systems on a regular basis.
2. IRIS Non-Solicitation Obligation. IRIS SHALL NOT USE ISO DATA TO SOLICIT ANY OF ISO’s USERS OR ACCOUNTS TO EITHER TERMINATE THE RELATIONSHIPS THEY HAVE FORMED THROUGH OR WITH ISO OR ENTER INTO NEW RELATIONSHIPS WITH IRIS OR WITH ANY THIRD PARTY FOR SERVICES THAT ARE SIMILAR OR COMPETITIVE WITH THOSE PROVIDED BY OR THROUGH ISO (THE “NON- SOLICITATION OBLIGATION“). IRIS’ CONSIDERATION FOR THE NON- SOLICITATION OBLIGATION IS ISO’S GRANTING TO IRIS ACCESS TO ISO DATA FOR THE PURPOSE OF PERFORMING THE SERVICES UNDER THIS AGREEMENT. THE NON-SOLICITATION OBLIGATION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT FOR TEN (10) YEARS, REGARDLESS OF THE CAUSE OF SUCH TERMINATION.
3. Password Security. One of the most important security features used today are passwords. It is important for ISO and all Users to have secure and un-guessable passwords. There is no way for IRIS to recall ISO or User passwords once they are created, only the ability to reset them at ISO or User request. IRIS recommends Users change their passwords every 60 days. Password information sent via an unencrypted communication method can cause eavesdropping on the packet data that ISO or a User may send or receive. Such methods of transmitting unencrypted password data to avoid are email and remote logins as eavesdropping of such sensitive information can occur. The ISO and its Users are solely responsible for any password breaches that may occur due to password exposure by or because of them.
4. Aggregated Data. Notwithstanding the foregoing, IRIS may collect, use and disclose aggregated data concerning ISO, Users, their Accounts, Processors and other information processed through the Services (“Aggregated Data”) provided, however, that no such use shall or may be likely to facilitate in IRIS or any third party being able to access any information concerning any individual Account or Agent of the ISO or in any way damage the business of the ISO. Aggregated Data will not permit any user thereof to identify the ISO or its individual portfolio of merchants with any individual Processor. Aggregated Data, if any, shall be the sole property of IRIS.
5. Compelled Disclosure. The IRIS may disclose ISO Data of the ISO if it is compelled by Law to do so, provided the IRIS gives the ISO prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the ISO’s cost, if the ISO wishes to contest the disclosure. If the IRIS is compelled by law to disclose the ISO’s ISO Data as part of a civil proceeding to which the ISO is a party, and the ISO is not contesting the disclosure, the ISO will reimburse the IRIS for its reasonable cost of compiling and providing secure access to such ISO Data.
6. IRIS Confidential Information. ISO shall not use any information concerning this Agreement or the Services or, except as required by Law, stock exchange rules, or the Rules, disclose it to any third party except as expressly permitted by IRIS in writing all of which information shall be and remain the sole and exclusive proprietary confidential information of IRIS.
Covenants, Representations and Warranties
1. The parties represent, warrant and covenant the:
  1. Good Standing. Each party is a limited liability company organized, validly existing and in good standing under the Laws of the state where its principal office is located.
  2. Full Authority. Each party has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement.
  3. Processor Agreement Valid. ISO represents and warrants that the Processor Agreement remains valid and in force; ISO is not in breach of the Processor Agreement. Neither ISO nor any User is in breach of any of the ISO Conditions.
  4. IRIS Services Not a Breach of Processor Agreement. ISO represents and warrants that performance by the ISO under this Agreement does not constitute a breach of the Processor Agreement. ISO has verified that none of the Processor Agreement or the terms and conditions applicable to the Processor Site prohibit or are inconsistent, in letter or spirit, with the use by the ISO and its Users of the Services. IRIS does not have access to the Processor Agreement and shall not verify the Processor Site terms and conditions to verify whether ISO would be in breach thereof in using the Services. ISO shall, from time to time, verify that it is not in breach of the Processor Agreement or the terms and conditions applicable to the Processor Site, as they may change from time to time. Nothing in this Agreement shall be deemed to amend or alter the terms of the Processor Agreement, nor shall this Agreement be deemed to be a part of or in any way associated with the Processor Agreement, Account Agreement or Agent Agreement. ISO acknowledges that, as between ISO and Processor, some ISO Data may belong to the Processor and ISO represents that ISO performance hereunder does not breach the ISO’s obligations in that regard.
  5. ISO Title in Information. ISO shall not enter or cause to be entered any data or information into the Service unless and to the extent that ISO has the right to such information. For example, but without limitation, ISO will not use the Service to store data that is stolen or that has been otherwise misappropriated from a third party.
  6. No Violation. ISO represents and warrants that ISO’s performance of this Agreement will not violate any applicable law or regulation or any agreement or Rule to which that party may now be bound.
  7. Enforceability. This Agreement represents a valid obligation of each party and is fully enforceable against it.
  8. Compliance. ISO will comply with the terms of this Agreement, with all applicable Rules.
  9. No Litigation. Neither party nor its officers and directors are a party to any pending litigation that would have an impact on this Agreement and have never been fined or penalized by Payment Networks, NACHA or any other association in the credit, payments or banking industry.
  10. Business. In entering into and performing under this Agreement ISO is doing so as a business enterprise and not as an individual consumer.
LIMITATIONS
1. WITH THE EXCEPTION OF THOSE WARRANTIES SET IN SECTION 6 OF THIS AGREEMENT, IRIS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND/OR THE PERFORMANCE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
2. IRIS makes no representation as to the continued availability of the Dialer Service on an uninterrupted or error-free basis. Without limitation, IRIS shall not be liable for any interruptions in the Dialer Service that, or other Services, that: (i) are caused by factors outside of IRIS’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of IRIS or its direct hosting subcontractors (i.e beyond the point in the network where IRIS maintains access and control over the Dialer Services); (ii) result from any actions or inactions of ISO or any third party (other than IRIS’s direct hosting subcontractor); (iii) result from applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within IRIS’s direct control); or (iv) arise from IRIS’s suspension and termination of ISO’s right to use the Dialer Services in accordance with the TOS, (v) scheduled maintenance; or (vi) problems or issues related to alpha, beta or not otherwise generally available IRIS features or products.
3. ISO’s sole remedy in respect of any and all interruptions of the Dialer Service shall be credit equivalent to the amount paid by the ISO for the time during which the Dialer Service was unavailable calculated by multiplying the Fee paid in respect of the Dialer Service for the month in question and multiplying it by the percentage of such month during which the Dialer Service was not available.
4. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR LOSS OF PROFITS OR ANTICIPATED PROFITS OR BENEFITS, REGARDLESS OF HAVING BEEN APPRISED OF THE POSSIBILITY THEREOF. THESE LIMITATIONS SHALL APPLY TO ALL CLAIMS OR CAUSES OF ACTION BY ISO, PROCESSOR, USER AGAINST IRIS UNDER OR IN CONNECTION WITH THE LICENSE OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, PERSONAL INJURY, AND OTHER TORTS AND CONTRACT CLAIMS. UNDER ANY AND ALL CIRCUMSTANCES, IRIS’ MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID TO IT HEREUNDER FOR THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION 8.4 SHALL NOT APPLY TO EITHER PARTY’S BREACH OF THE CONFIDENTIALITY AND NON-SOLICITATION COVENANTS HEREIN IN WHICH CASE EACH PARTY’S LIABILITY IS LIMITED TO A MAXIMUM OF THE TOTAL AMOUNT PAID TO IRIS IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
5. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 6 OF THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS AND WITH ALL FAULTS” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IRIS DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES AND THE ACCOMPANYING DOCUMENTATION. IRIS ASSUMES NO RESPONSIBILITY FOR SELECTING THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SERVICES. WITHOUT LIMITING THE FOREGOING PROVISIONS, IRIS MAKES NO WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET THE REQUIREMENTS OF ISO. THE SERVICES ARE NO GUARANTEE THAT YOUR ISO BUSINESS WILL IMPROVE OR GENERATE MORE INCOME. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. WITHOUT LIMITATION, IRIS ASSUMES NO LIABILITY FOR THE LACK OF LEGAL ENFORCEABILITY OF ANY AGREEMENT FORMED OR THAT ISO ATTEMPTS TO FORM THROUGH THE SERVICES OR ANY PART THEREOF SUCH AS TURBOAPP, E-SIGNATURE SERVICES OR DIALER SERVICES.
7. Inter-ISO Solicitation. It shall not be a breach of the terms of this Agreement by IRIS for an ISO or User to solicit the Accounts of another ISO or User of another ISO (“Inter-ISO Solicitation”). Inter-ISO Solicitation may be a breach of agreements between ISOs, Processors and Users, but IRIS is not party to and such agreements and shall not be responsible for any breach of such agreements whether or not they occur in respect of Accounts whose information is included in ISO Data. In the event of perceived, actual or attempted Inter-ISO Solicitation, IRIS shall not divulge ISO Data to assist in the resolution of any claims related thereto other than pursuant to a court order. ISO shall be responsible for any and all legal fees of IRIS in association with responding to any claims related to such an order or other matters related to Inter-ISO Solicitation. IRIS does not have the obligation to monitor new Accounts for any of its ISOs or clients to see that they are or are not migrated from one ISO to another or to see that such migration is prevented.
Indemnification
1. Subject to the limitations on liability set out in Section 8, each party agrees to indemnify, defend, and hold harmless the other party, its Affiliates, officers, directors, employees, licensors and permitted assigns from and against any loss, liability, damage, penalty or expense (including reasonable attorney’s fees and cost of defense) (“Damages“) suffered or incurred as a result of: (i) any breach of its obligations under this Agreement; (ii) any warranty or representation made pursuant to this Agreement being false or misleading; (iii) any representation or warranty made by such party to any third person other than as specifically authorized by this Agreement; (iv) any failure by ISO or any of its Users to fully comply with the applicable Rules and requirements of any Regulatory Authority, (v) any fraud by such party or, in the case of ISO, any of its Users; (vi) any wrongful act of any that would constitute a breach of such party’s obligations under this Agreement or is a violation of the Rules; or (vi) in the case of ISO, any claim or dispute (“Dispute“) that relates to the ownership, control, entitlement, enforceability or operation of ISO in connection with ISO’s rights, interests, duties and obligations under this Agreement or any agreement formed while using the Services, such as, for example, an ISO Electronic Record or Account Agreement, regardless of whether IRIS is named as a defendant or otherwise involved or subpoenaed to provide exports in such Dispute. Notwithstanding the foregoing, IRIS indemnification obligations shall extend only to its breaches of Section 6 hereof.
2. Without limitation, ISO shall indemnify IRIS for any and all attorney fees and other costs associated with responding to any subpoena for ISO Data. Notwithstanding any provision herein to the contrary, it shall not be a breach of the terms of this Agreement for IRIS to delivery ISO Data to a third party upon receipt by IRIS of a subpoena for such ISO Data, or if IRIS reasonably believes that use or disclosure is necessary to protect the IRIS’ rights and/or to comply with a judicial proceeding, court order, or legal process.
Term and Termination
1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscription Terms granted in accordance with this Agreement have expired or been terminated, or until it is terminated pursuant to the other provisions hereof. IRIS may terminate this Agreement on sixty (60) days prior written notice for any reason or no reason.
2. Subscription Terms. Except as otherwise specified in the applicable Order Form, all Subscriptions are specified on the Order Form and shall automatically renew for additional and successive periods equal to the expiring Subscription Term, unless either ISO gives IRIS notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term. IRIS may increase per unit pricing once in any twelve (12) month period. Notice of any price increases shall be given by IRIS to ISO not less than sixty (60) days prior to its effectiveness.
3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4. Refund or Payment upon Termination. Upon any termination for cause by ISO, IRIS shall refund ISO any prepaid Fees for Subscription Terms that will be unused on account of the termination. Upon any termination for cause by IRIS, ISO shall pay any unpaid Fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve ISO of the obligation to pay any Fees payable to IRIS for the period prior to the effective date of termination.
5. Data Transfer. If the ISO needs to have its data exported from IRIS, it must give notice to IRIS of no less than twenty (20) days prior to termination of this Agreement. ISO will provide to IRIS with express written instructions (“Deconversion Instructions“) as to what ISO Data the ISO wishes to export prior to termination (such data being the “Deconversion Data“). Deconversion Data may contain only those elements of ISO Data that are present in the Services on receipt by IRIS of the Deconversion Instructions. IRIS shall provide ISO with access to a copy of the Deconversion Data in a reasonably usable format, as determined by IRIS in its sole but reasonable discretion until 11:59 PM on the last day of the Subscription Term. ON THE EXPIRATION OF THE SUBSCRIPTION TERM, IRIS SHALL IRRETRIEVABLY DELETE DECONVERSION DATA AND ISO DATA THAT ARE IN ITS POSSESSION OR CONTROL. IRIS may, however, at its discretion, retain a record of ISO contact information, this Agreement, correspondence with IRIS under this Agreement and Fees paid or owing hereunder.
License for Marketing and Promotional Activities
1. Marketing License. Subject to the terms and conditions of this Agreement, each party hereby grants to the other a worldwide, non-exclusive, non-assignable, non-sublicensable, royalty-free, paid-up, limited license to use and display the party’s marks and names (such marks and names being the “Marks” and such license being the “Marketing License”).
2. Marketing License Guidelines. In its use of the Marks of the other party (“Licensor“), each party (“Licensee“) will comply with any trademark usage guidelines that Licensor may communicate to Licensee from time to time. Each use of Licensor’s Marks by Licensee will be accompanied by the appropriate trademark symbol (either “™” or “®”) and a legend specifying that such Marks are trademarks of Licensor as specified by the Licensor, and will be in accordance with Licensor’s then-current trademark usage policies as provided in writing to Licensee from time to time. Licensee will provide Licensor with copies of any materials bearing any of Licensor’s Marks as requested by Licensor from time to time. If Licensee’s use of any of Licensor’s Marks, or if any material bearing such Marks, does not comply with the then-current trademark usage policies provided in writing by Licensor, Licensee will promptly remedy such deficiencies upon receipt of written notice of such deficiencies from Licensor. Other than the express licenses granted herein with respect to each Licensor’s Marks, nothing herein will grant to Licensee any other right, title or interest in Licensor’s Marks. All goodwill resulting from the Licensee’s use of Licensor’s Marks will inure solely to Licensor. Licensee will not, at any time during or after this Agreement, register, attempt to register, claim any interest in, contest the use of, or otherwise adversely affect the validity of any of Licensor’s Marks (including, without limitation, any act or assistance to any act, which may infringe or lead to the infringement of any such Marks).
3. Reservation of Rights. The parties acknowledge and agree that, except for the rights and licenses expressly granted by each party to the other party under this Agreement, each party will retain all right, title and interest in and to its products, services, Marks, and all content, information and other materials on its website(s), and nothing contained in this Agreement will be construed as conferring upon such party, by implication, operation of Law or otherwise, any other license or other right.
General
1. Notice. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing with confirmation of delivery; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to ISO shall be addressed to the system administrator designated by ISO for ISO relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by ISO.
2. Publicity. For the term of this Agreement, ISO grants IRIS the right to use the name and logo of ISO on the Site, indicating that ISO is a client of IRIS. Except for the foregoing, neither party shall make any public announcements or issue any press releases concerning this Agreement other than as may be approved in writing by both parties hereto.
3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of New York without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts of the State of New York in the county where IRIS is located.
4. Waiver of Jury Trial. Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
6. No Third‐Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
7. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of any other remedies of a party at law or in equity.
8. Amendment. This Agreement may be amended by: (i) a writing between the parties hereto; (ii) by acceptance of a new version hereof on the Site by the ISO or User; or (iii) by IRIS posting notices of amendments hereto on the Site and ISO or any of its Users continuing to use the Services for thirty (30) days following such postings.
9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10. Attorney Fees. ISO shall pay on demand all of IRIS’ reasonable attorney fees and other costs incurred by IRIS to collect any fees or charges due to IRIS under this Agreement following ISO breach of Fee payment obligations.
11. Assignment. ISO may not assign its rights or obligations hereunder without prior written consent of IRIS, except to an Affiliate or to a party acquiring substantially all of ISO’s assets, directly or by operation of law provided that such assignee shall also assume ISO’s obligations hereunder. IRIS may assign its rights and obligations hereunder on notice to an Affiliate or to a party acquiring substantially all of IRIS’ assets, directly or by operation of law.
12. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire Agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail to the extent executed by IRIS and ISO. Notwithstanding any language to the contrary therein, no terms or conditions stated in ISO purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
13. Electronic Signatures. Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when: (1) ISO or User’s electronic signature is associated with the Agreement and related documents, (2) ISO or User consents and intend to be bound by the Agreement and related documents, and (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). When accepted in electronic form, this Agreement and all related electronic documents shall be governed by the provisions of E-Sign. By pressing “Submit”, “Accept” or “I Agree”, ISO or User, as the case may be, agrees: (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, and (iii) that it has had the ability to print or otherwise store the Agreement and related documents.
14. Survival. The following provisions of this Agreement shall survive termination of this Agreement: 1 Definitions, 5 Fees (as to unpaid Fees that are owing), 6 IRIS Security, Confidentiality and Non-Solicitation Undertakings, 8 Limitations, 9 Indemnification, 10 Term and Termination, 11 Marketing License and 12 General.

Terms of Use Free Trial

These terms are inapplicable to customers who signed contracts starting on or after March 1, 2024 and that incorporate by reference the terms at Platform Terms Conditions. Please refer to your order form and reach out to your customer account manager for questions.

These terms and conditions (including the cover page hereof any schedules, exhibits or addenda hereto, collectively the “Agreement”) are an agreement between Integrated Reporting is Simple, LLC, a Nevada limited liability company with an office at 401 Ryland Street, Suite 200-A, Reno NV 89502 (“IRIS”, “us”, “we” or “our”) and you, being the entity that accepted them (“you”, “your” or “ISO”). This Agreement is effective as of the date of signature of the ISO, as set forth on the first page of this Agreement (the “Effective Date”).

Definitions. For the purposes of this Agreement, the following terms shall have the definitions set out below:”Account” means a merchant or other business that wishes to or has agreed to procure Account Services or Processor Services as a result of the direct or indirect solicitation by ISO or any of its Users.

“Account Agreement” shall mean an agreement between any of Acquiring Bank, Processor, and ISO, on the one hand, and Account on the other hand, pursuant to which the Account receives Account Services.

“Account Application” shall mean the application or portal (electronic or paper) used by any of a Processor, Acquiring Bank or ISO to ascertain whether a given potential Account is eligible to procure the Account Services and includes the terms of the applicable Account Agreement, such as they may be from time to time.

“Account Information” shall mean any and all information concerning a given Account, including, without limitation, such information as an Acquiring Bank or Processor may require to be included in an Account Application.

“Account Portal” is a means of accessing the Service supplied by IRIS and available to certain Accounts of the ISO as per the terms of this Agreement and an Order Form.

“Account Principal/Customer” means an individual principal or guarantor of any Account.

“Account Services” means services supplied to Accounts by Processor, Acquiring Bank or ISO, such as, for example purposes only, payment processing services for payment card transactions.

“Active Account” means an Account: (i) that was added to the IRIS Instance during the current billing period for the first time through TurboApp, a Third Party Application, residual report import or manually by a User; or (ii) for which IRIS has reported any new data that was received from a Third Party Application such as deposits, transactions, Account demographic changes, chargebacks or statements during the current billing period; or (iii) where an ISO or any User earns any non-zero residuals or other compensation as calculated by IRIS; or (iv) the Account was manually set to ‘Active’ by a User and never deactivated.

“Acquiring Bank” means any financial institution acting as part of a Payment Network and sponsor of ISO or ISO’s Affiliates.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity; “control”, for purposes of this definition, means direct or indirect ownership or financial influence of more than 50% of the voting interests of the subject entity.

“ACH” means the Automated Clearing House settlement process used to effect debits and credits to the ISO DDA.

“Dialer Acceptable Use Policy” has the meaning set out below in Section 2.3.6 below.

“Dialer Services” means that part of the Services that integrate certain telecommunications capabilities therein, as determined by IRIS from time to time.

“E-Sign Service” means that Service of assisting the ISO in obtaining electronic signatures of certain documents, as described more fully below.

“Emergency Services” means services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 Services.

“Fees” shall be those fees and expenses for which ISO is liable to pay IRIS in consideration of the Services for itself and all its Users. Fees are defined herein and are posted from time to time on the Site. In the event of any inconsistency between the Fees set out herein and those posted on the Site, the latter shall prevail. All Fees charged on a per-Account basis are charged only on Active Accounts. All Fees indicated are exclusive of applicable taxes.

“Force Majeure” means a circumstance beyond IRIS’ reasonable control, which results in IRIS being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include without limitation: (a) acts of God, lightning strikes, earthquakes, epidemic, plague, tsunami, floods, typhoons, tornadoes, cyclones, storms, explosions, fires and any natural disaster or calamity; (b) any law or government order, rule, regulation or direction, or any action taken by a government or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent; (c) acts of war, invasion, armed conflict, cessation of diplomatic relations, imposition of sanctions, acts of public enemies, rebellion, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; (d) strikes, labor disputes, industrial actions and lockouts; and (e) computer hacking or viruses and unforeseen equipment or communications interruption or fault.

“Intellectual Property Rights” means all intellectual property rights and all tangible embodiments of such rights, wherever located, including but not limited to the following: (i) all trademarks, service marks or other designations of origin, including all registrations and related applications and all goodwill associated with any of the foregoing; (ii) all copyrights, moral rights, and other rights in works of authorship, including all registrations and related applications; (iii) all inventions and ideas, whether patentable or not, and all patent rights, patents and patent applications; all know-how, trade secrets, confidential information, and other proprietary rights and information; and (v) all other rights covering intangible property recognized in any jurisdiction.

“IRIS Instance” means the IRIS-hosted and managed instance of the Services supplied to ISO under this Agreement through which ISO may access the Services.

“ISO Data” means any and all electronic data or information submitted or transferred by ISO, a User, an Acquiring Bank or a Processor, to IRIS through the use of the Services by the ISO or any of its Users hereunder, including, as it relates to an Account or any Account Principal/Customer, name, address, date of birth, social security number, driver’s license number, account number, credit or debit card number, or a personal identification number or password that would permit access to the Account or Account Principal/Customer’s account, or any combination of components of Account or Account Principal/Customer information that would allow someone to log onto or access Account’s or Account Principal/Customer’s account, such as a username and password, password or transaction information. ISO Dialer Data is, without limitation, ISO Data. ISO Data does not include data that has been deleted from the Services or any data or libraries used by IRIS to operate the Services or that is otherwise provided to IRIS other than by ISO or its Users or Processor in relation to ISO. For the avoidance of doubt, ISO Data is confidential and proprietary information of ISO.

“ISO DDA” means a direct deposit account of the ISO with a bank or other financial institution that shall be used to make payments to IRIS of Fees and other amounts owing hereunder by ACH.

“ISO Dialer Data” means data and other information made available to IRIS through the use of the Dialer Services under this Agreement, including call records, audio recordings, recording transcriptions, SMS records, and SMS message content.

“ISO Privacy Policy” means a privacy policy of the ISO addressing the collection, storage, processing, use and disclosure of Account, User and other third party data that is consistent with Laws.

“ISO Systems” means the servers or computing systems owned, operated or controlled by the ISO or otherwise used by the ISO, its Affiliates, Users or Accounts in conjunction with the business of the ISO.

“ISO Site” means the web site or web sites owned or other electronic accounts, operated or controlled by the ISO or otherwise used by ISO, its Affiliates, Users or Accounts in conjunction with the business of the ISO.

“Laws” shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Order Form” means that paper or electronic form provided by IRIS and completed by ISO for the purpose of ordering certain Services or additional Services wherein the Fees applicable to the Service shall be set out, all of which forms, when accepted by IRIS in writing, are hereby incorporated in this Agreement by reference.

“Payment Network” means any and all of Visa Inc., MasterCard Incorporated, Discover Financial Services, American Express Company, JCB, Diners, NACHA, any Affiliate of the foregoing and other payment networks providing services used by Processor and or Accounts.

“Processor” means an entity, that in the course of a valid and ongoing contractual relationship with the ISO, in the form of a Processor Agreement, provides Processor Services and electronic reporting to the ISO related thereto.

“Processor Agreement” means a written agreement entered into between ISO, Processor and possibly other entities, such as an Acquiring Bank, pursuant to which ISO and the Processor and/or Acquiring Bank provide certain services, such as, for example purposes only, the solicitation of potential Accounts. Processor Agreement shall include any and all terms and conditions and privacy policies applicable to use of the Processor Site, such as they may be from time to time, as well as all applicable Rules and Laws.

“Processor Services” shall mean those services provided by a Processor under an Account Agreement or the Processor Agreement for the ISO or for Accounts.

“Processor Site” means a web site or FTP address or other electronic portal designated by Processor or its designee that ISO is to use for the purposes of any of: obtaining electronic reporting concerning Accounts and other Account Information relevant to the Processor Services, the submission of Account Information for Account Applications or other exchanges of information between Processor and ISO or Users.

“Rules” means the rules and regulations of Payment Networks, such as they may be from time to time, other rules and regulations generally applicable to the business of the ISO and all applicable Laws.

“Services” means the electronic reporting services provided by IRIS pursuant to this Agreement including those that ISO has elected to use through an Order Form, the Site, by signing a paper version of this Agreement. The Services are more fully described on the Site, such as it may be from time to time, and may include, depending on ISO elections: the TurboApp, E-Sign Service and Dialer Service.

“Subscription Term” shall mean the term for which Services are purchased by ISO in respect of Active Accounts within a pricing tier.

“Subscription” shall mean the entitlement of an individual User to use the Services for a Subscription Term specified on the Order Form.

“Term” shall mean the term of this Agreement for the length of time specified on the Order Form that shall begin as of the Effective Date and shall terminate as of the end of the last Subscription Term to end or such earlier time as may be provided for herein.

“Third‐Party Applications” means online, applications and offline software products that are provided by third parties such as, but not limited to, feeds of data from Acquiring Banks, Processors, CRM systems, gateways, other independent sales organizations, banks or other third parties that interoperate with the Services and are identified as third-party applications within the Site, such as they may be from time to time.

“TurboApp” means that part of the Services that permits Users to transmit Account Information collected by Users from potential Accounts for Account Applications.

“Users” means individuals or entities who: (i) are authorized by ISO to use the Services; (ii) for whom Subscriptions have been purchased by ISO; (iii) who have agreed to the terms hereof; and who have been supplied user identifications and passwords for the Services by ISO. Users may include, at the discretion of ISO, ISO employees, consultants, contractors and agents, Accounts; or other third parties with which ISO transacts business for which the Services are a suitable complement. ISO has the right to initiate and remove access to the Services for each of its Users. As between ISO and each of its Users, ISO shall dictate which of the Services herein each User may be entitled to use at any given time, if any.
Services
1. Services. IRIS shall make the Services available to ISO and Users selected by ISO pursuant to this Agreement and Order Forms during the Term of this Agreement. Services are provided subject to, without limitation (the “ISO Conditions“): (i) payment by ISO of all applicable Fees; (ii) adherence of the ISO to the terms of this Agreement; (ii) no prohibition on IRIS providing the Services in respect of ISO, its Processor, its Acquiring Bank or Payment Networks; (iii) adherence of the ISO to the terms and conditions of the Processor Site; and (iv) adherence of the ISO to the terms of the Processor Agreement. ISO agrees that the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by IRIS regarding future functionality or features or the Services. IRIS reserves the right to modify the Services by notice through the Services or by email to the ISO. IRIS also reserves the right to cease providing the Services on at least sixty (60) days notice through the Services or by email to the ISO.
2. TurboApp. If ISO has elected to use TurboApp, then IRIS shall allow Users to access, complete, inspect and modify certain Account Information fields within electronic facsimiles of Account Applications presented to the User through the Services. In so doing, the ISO covenants that all of its Users shall input only Account Information that is complete and accurate and that the applicable Acquiring Bank and, as applicable, Processor permits to be incorporated into the Services. IRIS shall assume no liability in respect of any Account Information that is incorrect, either through ISO, User or Processor error or otherwise, all of which information ISO undertakes to scrutinize and review prior to submission to the Processor through TurboApp or otherwise.
  1. Account Application Facsimile. As part of the setup of TurboApp, ISO will be asked to assist in accepting or creating a facsimile of the Account Application. ISO hereby licenses to IRIS the right to use the information, names and logos that it is instructed to include or that ISO accepts to be included in the TurboApp and shall indemnify and hold IRIS harmless for any claims by Processor, Acquiring Bank, Payment Network or any other third party in respect of the use thereof within the Services for ISO. ISO assumes sole and exclusive responsibility for any discrepancies that may occur between the TurboApp Account Application and that which may be mandated by an Acquiring Bank and, as applicable, Processor.
  2. Submitting Account Applications. Submitting Account Information to an Acquiring Bank and/or Processor through IRIS is a multi-stage process that requires the close attention of the ISO and each User so as not to submit false or erroneous information to the Acquiring Bank and/or Processor. Whether in good faith or not, the submission of false, erroneous or misleading information on an Account Application could result in grave and irreparable damages to the ISO under its Processor Agreement, the Rules or otherwise. Any and all mistakes or fraud in the submission of Account Information by ISO or any User shall be the sole and exclusive responsibility of the ISO and Users. ISO and Users shall indemnify and hold IRIS harmless from and against any and all liability in respect of the foregoing. Without limitation to any of the other obligations of the ISO and each User under this Agreement, when a User clicks ‘Submit’ in relation to given Account Information for an Account Application it shall be required, at every instance, to agree with the following, which shall form part of this Agreement (the “User Submission Certification“):”IMPORTANT AND LEGALLY BINDING TERMS: BY PUSHING THE ‘SUBMIT’ BUTTON BELOW, YOU ARE REPRESENTING THAT YOU HAVE DONE AND THAT YOU AGREE WITH ALL OF THE FOLLOWING:YOU ARE RESPONSIBLE FOR THE MERCHANT INFORMATION YOU SUBMIT;
    1. You have carefully reviewed all information relating to the merchant and verified that it is both true and accurate. You have solicited the merchant in full compliance with your agent or ISO agreement;
    2. You have undertaken all siteinspections or other verifications of the merchant required by your ISO and processor;
    3. You acknowledge that once the information is submitted through this form it cannot be retracted or changed through IRIS; it can only be changed through your direct correspondence with your ISO and processor;
    4. ANY AND ALL CHANGES TO MERCHANT PRICING AFTER THE SUBMISSION OF THIS APPLICATION MUST BE IMPLEMENTED BY YOU DIRECTLY WITH YOUR PROCESSOR AND NOT THROUGH IRIS. IF INTERCHANGE OR OTHER PROCESSOR PRICING CHANGES, AND YOU DO NOT INSTRUCT YOUR PROCESSOR DIRECTLY TO CHANGE MERCHANT PRICING, YOU MIGHT PAY FOR THE INCREASE, NOT YOUR MERCHANT.
    5. You have obtained a signature of the merchant and its guarantor(s) permitting you to submit their information in relation to this merchant agreement application. You have verified that the person signing for the merchant has been duly authorized to sign for the merchant;
    6. You have in your possession a hard copy of the merchant agreement wherein all of the information in this form has been completed by the merchant; IRIS will have no responsibility for your errors, errors of the ISO or errors of your processor in respect of the information you are submitting, all of which is your responsibility;
    7. From time to time processor systems may change, which changes may prevent IRIS from submitting all or submitting accurate versions of the information you are about to submit. The sole responsibility of IRIS in this regard will be to use commercially reasonable efforts for its services to be consistent with processor merchant application submission technical criteria, but IRIS does not guarantee that the merchant information will be submitted accurately or completely;
    8. After the merchant information has been submitted, you will verify through processor’s reporting system that the information is accurate and complete and you will also update merchant pricing directly with processor and not through IRIS when processor or other pricing changes occur;
    9. You have consent from your ISO to submit the information that you are about to submit;
    10. You reaffirm that the agreement with your ISO and processor is active for which you have solicited the merchant; and
    11. YOU HEREBY REAFFIRM YOUR ACCEPTANCE OF THE IRIS (I) MASTER SUBSCRIPTION AGREEMENT; (II) PRIVACY POLICY; AND (III) WEBSITE TERMS OF USE, ALL OF WHICH ARE AVAILABLE HERE Website Terms & Conditions AND INCORPORATED HEREIN BY REFERENCE.”
  3. ISO Third Party Beneficiary of User Certification. The parties hereto agree that the ISO is deemed to be a third party beneficiary in respect of each User Submission Certification. IRIS shall, however, have no liability to ISO, any User or any other third party in respect of any dispute between the two as to a User Submission Certification or otherwise and ISO shall indemnify and hold IRIS harmless from and against any claims related to a User Submission Certification.
  4. Keeping Account Pricing Up to Date. From time to time, Processors and other third parties involved in Account Agreements and Processor Services, will increase or otherwise amend the pricing applicable to Accounts and ISO for their services (each a “Account Price Change“). ISO acknowledges and agrees that: (i) once a given Account Application has been submitted through TurboApp, the only means by which to implement an Account Price Change for the Account is for the ISO to instruct the Processor/Acquiring Bank directly to make such change; and (ii) if the ISO fails to implement an Account Price Change through direct communication with its Processor (and not through IRIS) the change will not necessarily be implemented for Accounts and the ISO may be liable to pay for the change by way of a direct and potentially material reduction in its compensation under a Processor Agreement. IRIS does not provide any Account Price Change functionality.
  5. E-Sign Service. The U.S. Federal Electronic Signatures in Global and National Commerce Act (“E- Sign Act“), provides that, subject to certain conditions, electronically executed documents are legally binding in the same manner as are hard copy documents executed by hand signature. Subject to payment of the applicable Fees, IRIS shall provide the E-Sign Service to ISO. Subject to the parameters of the E-Sign Service, the E-Sign Service allows ISO to facilitate in the presentation of its documents to third parties, such as, for example, Accounts, collect electronic signatures and create electronic records (each, an “ISO Electronic Records“).
  6. ISO shall assume sole and exclusive responsibility for the content of each ISO Electronic Record. For example, if ISO wishes to create a contract using the E-Sign Service, ISO shall provide the whole content of the contract as well as all fields that the parties to the contract are required to complete (each a “Record Field“).
  7. In the event that ISO wishes to ask third parties to enter sensitive or confidential personal information into an ISO Electronic Record, such as tax ID numbers, EIN numbers, SSN numbers, bank account or routing numbers, then ISO must use only the secure field option within the E-Sign Service for such records. ISO shall ensure that it shall use the E-Sign Service in a manner that is consistent with the ISO Privacy Policy.
  8. When ISO has completed an ISO Electronic Record form with all disclosure, terms and Record Fields, the ISO will be able to grant third parties access to the ISO Electronic Record and obtain signatures on it through the E-Sign Service.
  9. IRIS makes no representation and assumes no liability for the legal effectiveness of any ISO Electronic Record or related signature, all of which is the exclusive responsibility of the ISO. IRIS recommends that the ISO consult legal counsel if it wishes to use the E-Sign Service to create legally binding agreements, as the enforceability of such agreements is the sole and exclusive responsibility of the ISO and not IRIS.
  10. As and when the ISO makes ISO Electronic Records available for signature by third parties, such third parties will be presented with disclosure that applies to the E-Sign Services, which disclosure is incorporated herein by reference.
  11. ISO hereby agrees to the terms appearing at the following URL: www.echosign.adobe.com/en/tou/terms-of-use.html, which are incorporated herein by reference.
  12. After and ISO Electronic Record is signed through the E-Sign Service, depending on the preferences selected by the ISO, an electronic copy of the record may be sent by email to the ISO or the third party or may be available for access through the E-Sign Service on the Site. ISO is required to download and store on ISO Systems copies of any and all ISO Electronic Records, both signed and unsigned.
  13. ISO shall not use the E-Sign Services nor shall it permit any User to use them to create contracts other than with the full and enlightened consent of all parties thereto and in a manner consistent with the ISO Privacy Policy.
3. Dialer Service.
  1. Provision of Services. IRIS will make the Dialer Services available to ISO in accordance with this Agreement and the Dialer Service SLA. Subject to the terms and conditions of this Agreement, IRIS grants ISO a non-exclusive, revocable right to Use the Dialer Services and make them available to Users in connection with the use of the Services.
  2. ISO Dialer Data. ISO Dialer Data shall be part of ISO Data and shall be governed accordingly. ISO shall use the Dialer Service in a manner that is consistent with the ISO Privacy Policy.
  3. Use of Dialer Services. If ISO elects to purchase the Dialer Services, ISO will be solely responsible for all use (whether or not authorized) of the Dialer Services under its Account, including for the quality and integrity of ISO Dialer Data. ISO is responsible for compliance of all its Users with the terms hereof including but not limited to those concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability. ISO will promptly notify IRIS if it becomes aware of any breach of the terms of this Agreement that may affect IRIS. ISO will take all reasonable precautions to prevent unauthorized access to or use of the Dialer Services and notify IRIS promptly of any such unauthorized access or use.
  4. Restrictions. Except as expressly provided herein in respect of Users, ISO will not transfer, resell, lease, license or otherwise make available the Dialer Services to third parties. In any event, the ISO will not offer the Dialer Services on a standalone basis. ISO will not use the Dialer Services to access or allow access to Emergency Services. ISO will ensure that the Dialer Services provided hereunder are used in accordance with all Laws and third party rights, as well as the terms of this Agreement, including IRIS’ Acceptable Use Policy, set out below. Specifically, and without limitation, ISO will ensure that IRIS is entitled to use the ISO Dialer Data as needed to provide the Dialer Services and will not use the Dialer Services in any manner that violates the ISO Privacy Policy or any data protection statute, regulation, order or similar Law.
  5. Limitations. The Dialer Services are deemed part of the Services and are subject to all the limitations of liability, restrictions and obligations applicable to the Services in the Agreement.
  6. Dialer Acceptable Use Policy.This Dialer Services acceptable use policy (the “Dialer Acceptable Use Policy“) describes actions that IRIS prohibits when any party uses the Dialer Services. The Dialer Services may not be used in any illegal, abusive or other manner that interferes with the business or activities of any other party. The following list gives examples of prohibited. Each item on the list below, and similar activities are also prohibited in respect of the Services, more generally. This list is provided by way of example and should not be considered exhaustive:
    1. Attempting to bypass or break any security mechanism on any of the Dialer Services or using the Dialer Services in any other manner that poses a security or service risk to IRIS or any of its users.
    2. Testing or reverse-engineering the Dialer Services in order to find limitations, vulnerabilities or evade filtering capabilities.
    3. Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Dialer Services or any other conduct that adversely impacts the availability, reliability or stability of the Dialer Services.
    4. Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs.
    5. Using the Dialer Services in any manner that violates any applicable industry standards, Intellectual Property Right in the Services, any third party policies or requirements or other requirements that IRIS may communicate to its users, including Marketing Association or any other accepted industry associations, carrier guidelines or other industry standards.
    6. Engaging in any unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spam laws and regulations including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.
    7. Using the Dialer Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls SMS or text messages, voice mail, or faxes.
    8. Using Dialer Services to harvest or otherwise collect information about others, including email addresses or phone numbers.
    9. Using Dialer Services to engage in fraudulent activity with respect to third parties.
    10. Violating or facilitating the violation of any local or foreign Law, including Laws regarding the transmission of data or software.
    11. Taking any action to encourage or promote any activity prohibited under this Acceptable Use Policy.
    12. Transmitting any material that infringes the intellectual property rights or other rights of third parties.
    13. Transmitting any material that is libelous, defamatory, discriminatory or otherwise malicious or harmful to any person or entity.
    14. Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.
    15. Using the Dialer Service to carry out debt collection or other telemarketing activities that are illegal or aggressive.
4. Subscriptions. Unless otherwise specified in an Order Form: (i) Services are purchased by the ISO as Subscriptions; (ii) additional Subscriptions may be added during the Subscription Term at the pricing of the current applicable tier that is specified in relation to the Subscriptions on the Order Form.
5. Limitations on Right to Use Services. The right to use the Services are granted to the ISO on a limited, non-transferrable, non-exclusive license basis (the “Use Right”). Subject to the terms of this Agreement, the Use Right is hereby granted for ISO and each User only for the shorter of their Subscription Term or for the Term hereof. ISO will have the right to activate or deactivate the Services in respect of any given User at any time, subject to the terms of this Agreement.
6. Limitations on Use Right. The Services shall be used by ISO solely for its internal business purposes and ISO acknowledges and agrees that IRIS does not convey any right, title, interest or Intellectual Property Right in the Services to ISO other than the Use Right, and that all Intellectual Property Rights relating to the Services shall be the property of IRIS. ISO hereby acknowledges and agrees that the Use Right granted hereby is a right to use the Services through the Site only. ISO further agrees not to decompile, reverse engineer, or otherwise seek or utilize any expression of the Services in other than object code form. ISO shall not alter or otherwise modify the Services. ISO shall not itself or permit any third party to use the Services to gain access to information to which ISO does not have rightful title and shall immediately notify IRIS of any actual or attempted use of the Services other than as expressly permitted herein. Subject to the limited rights expressly granted hereunder, IRIS reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to ISO hereunder other than as expressly set forth herein. The Use Right expressly excludes the right to make any use of the Services to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7. Suggestions. IRIS shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by ISO, including Users, relating to the operation of the Services.
8. ISO Security. ISO shall maintain the security of the ISO Site and ISO Systems so that it is up to or exceeding industry customs and norms. Without limitation, ISO shall obtain and maintain a Secure Sockets Layer certificate (“SSL Certificate“) in respect of the ISO Site. Lack of an SSL Certificate or other shortfalls in ISO security, as determined by IRIS, shall be grounds for IRIS to suspend ISO and User access to the Services. ISO shall monitor the use of the Services to verify that none of the ISO Site or ISO Systems are being used by any User or any third party to interfere in IRIS System operations or to obtain any information or data to which they are not entitled.
9. Federal Government End Use Provisions. IRIS provides the Services, including related software and technology, for ultimate federal government end use, solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with IRIS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or Agreement.
10. Agency. ISO hereby appoints IRIS its lawful agent and attorney in fact for the purpose of retrieving ISO Data from Processors and, through TurboApp, or otherwise, submitting Account Information to Processors, Acquiring Banks and other third parties, each as specified through the Services. In so doing, IRIS shall collect, store and disclose ISO Data from and between Processor, ISO and Users, as instructed by ISO and Users through the Services. If requested by a Processor or other relevant third party, ISO will confirm in writing the agency granted in this provision which agency shall be in force for the Term hereof. ISO is wholly responsible for any wrongful disclosure of ISO Data that occurs through the Services but on instructions from ISO or a User. IRIS shall use commercially reasonable efforts to not disclose ISO Data other than as instructed through the Services.
11. Account Portal. If provided for in an Order Form, ISO may grant its Accounts access to the Account Portal. The Account Portal will enable each Account that is designated as a User by ISO to access certain ISO Data related their individual Account and such other information as ISO may wish to share with the Account and that the Service can accommodate. An Account that is granted access to the Account Portal shall be a User and shall be bound by all the terms of this Agreement applicable to Users. IRIS will follow ISO instructions as to who can and cannot be a User in respect of a given Account, but ISO assumes responsibility for errors in identifying and granting access to Account Users.
Use of the Services
1. Support.
  1. During each Subscription Term, IRIS shall: (i) provide to ISO basic customer support for the Services; and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which IRIS shall give at least 8 hours notice via the Services and which IRIS shall schedule, to the extent practicable, during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), (b) any unavailability caused by circumstances beyond the reasonable control of IRIS or its suppliers, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving IRIS employees), internet service provider failures or delays, Processor downtime, Processor bars to IRIS access to ISO Data, data feed failures caused by Processor, delays or inaccuracy of information (each also a “Force Majeure“) and (c) normal and anticipated downtime of the Processor data feed.
  2. ISO shall comply with all applicable Laws, Rules and all decrees of all Payment Networks and governmental authorities (including without limitation federal, state and local governments, governmental agencies and quasi-governmental agencies (each a “Regulatory Authority“) having jurisdiction over ISO, Processor or Acquiring Bank. Not being an ISO, IRIS is not ordinarily in receipt of such decrees and shall not be required to comply with any Payment Network decrees that do not apply to it or of which it has no knowledge.
  3. IRIS has designed and implemented an information security program that is designed to protect ISO Data in its possession or control in accordance with the then-current Payment Card Industry Data Security Standards (together with applicable payment network data security requirements, the “PCI Standards“), and IRIS has documented all policies and procedures comprising such program (including escalation procedures for non- compliance). IRIS covenants to use commercially reasonable efforts to maintain such compliance during the Term and so long as any ISO Data remains in IRIS’ possession and will supply ISO with its annual report on compliance as required by the PCI Standards (the “ROC“) on request by ISO.
  4. In the event IRIS discovers any unauthorized access to or fraudulent use of any ISO Data, IRIS shall take appropriate actions (in accordance with applicable Rules, contractual obligations of confidentiality to ISO and third parties and statutory obligations to third parties) to address such unauthorized access or fraudulent use, including but not limited to promptly notifying ISO, verbally and in writing, of any such incident and cooperating with ISO, Payment Networks, a Processor and/or Acquiring Bank, as reasonably requested.
  5. Subject to reasonable advance notice, ISO, Processor, Acquiring Bank, any Payment Network, or any Regulatory Authority with regulatory oversight for any of the foregoing, may, directly or through representatives, audit IRIS’ equipment, infrastructure, systems, connectivity and related procedures to assess IRIS’ compliance with the terms of this Agreement. IRIS shall supply any of the foregoing parties with such information and reasonable assistance (including, upon reasonable notice and during regular business hours, on-site inspections) as may be necessary to confirm IRIS’ compliance as required herein. IRIS shall be provided no less than thirty (30) days prior notice of any audit or on- site inspection, provided that if Acquiring Bank, Payment Network or Regulatory Authority requires that the audit or inspection be conducted in a shorter period, IRIS will use commercially reasonable efforts to accommodate such request. No such inspection or audit shall in any way entitle ISO or any Payment Network or Regulatory Authority to gain access to data in possession of IRIS other than ISO Data unless IRIS is ordered to disclose such data by a court of competent jurisdiction. All of IRIS’ out-of-pocket costs associated with any such audit shall be paid by ISO. In the event that either (1) such audit is requested by ISO or Processor (and not an Acquiring Bank, Payment Network or Regulatory Authority) or (2) such audit is requested by an Acquiring Bank, Payment Network or Regulatory Authority, but IRIS is ultimately not found to have been in breach of the terms of this Agreement, then IRIS’ reasonably allocated internal costs associated with any audit of IRIS shall also paid by ISO at an hourly rate of $125 per hour. The parties acknowledge and agree that the determination of whether IRIS has been in breach of the terms of this Agreement may not be made until after the completion of the audit, and IRIS agrees to keep reasonably detailed internal records of its hourly internal costs and provide such records to ISO with the post-determination billing for its internal costs.
2. ISO Compliance. ISO shall: (i) be responsible for its own and its Users’ compliance with this Agreement, without relieving the obligation of each User to honor the terms hereof; (ii) be solely responsible for the accuracy, quality, integrity and legality of ISO Data and of the means by which ISO acquired ISO Data in so far as IRIS is instructed to obtain, store or submit that data from or to Processors; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify IRIS promptly of any such unauthorized access or use; (iv) use the Services only in accordance with the User Guide, published on the Site, and the Rules; and (v) regularly monitor for Account Price Changes and implement them directly with Processor and Accounts as per the procedures of the Processor and the Rules. ISO shall assume exclusive responsibility for any and all information provided by the ISO through the Services to Accounts.
3. Limitations on Use. ISO shall not: (i) make the Services available to anyone other than Users; (ii) sell, resell, rent or lease the Services; (iii) use the Services to store, publish or transmit infringing, libelous, lewd, distasteful, unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or any Intellectual Property Rights; (iv) use the Services to store or transmit Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (vi) attempt to gain unauthorized access to the Services or their related systems or networks. ISO is responsible for keeping their Service login credentials up to date and notifying IRIS of any such changes to prevent any down time and inaccuracy to data.
ThirdParty Providers.
1. Acquisition of Third-Party Products and Services. IRIS may offer Third-Party Applications for sale under Order Forms. ISO use of any Third-Party Applications and implementation, customization and other consulting services, and any exchange of ISO Data or other data between ISO and any third-party provider, is solely between ISO and the applicable third-party provider. IRIS do not warrant or support any Third Party Applications, whether or not they are designated by IRIS as “certified” or otherwise, except as specified in an Order Form that has been expressly accepted by IRIS. No purchase of third-party products or services is required to use the Services.
2. Third-Party Applications and ISO Data. If ISO installs or enables Third-Party Applications for use with Services, ISO acknowledges that IRIS will be notified in writing prior to any development. IRIS may allow providers of those Third-Party Applications to access ISO Data as required for the interoperation of such Third-Party Applications with the Services. IRIS shall not be responsible for any disclosure, modification or deletion of ISO Data resulting from any such access by Third-Party Application providers. The Services shall allow ISO to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services. The Service has been designed to perform optimally with current versions of Internet Explorer, Google Chrome, Safari and Mozilla Firefox; no commitments are made to upgrade the Services or make them compatible with any third party product or service. Use of the Service with any other Third-Party Application or plug-ins may be functional but is not guaranteed in anyway by IRIS.
3. Processor Compatibility. The Services may not always be compatible with Processor systems. Changes in Processor systems will interrupt the Services. It is recommended that despite your use of the Services, you maintain familiarity with Processor ISO Data access sites so that you can retrieve necessary ISO Data from Processors notwithstanding any interruption in the Services.
4. Relationship Between ISO and User. The Rules require that any sales agent of an ISO be a party to a written agreement with the ISO. ISO represents to IRIS that is has executed written agent agreements with all of its Agents and that such agreements are valid and legally enforceable. Nothing in this Agreement shall amend or interfere in any of the terms and conditions of agreements in place between ISO and any User or any other third party. Without limitation, ISO and each User shall indemnify and hold IRIS harmless from and against any and all claims, losses or other liabilities arising in respect of any claim made against IRIS that relates to a dispute between ISO or any User and any other party. IRIS reserves the right to immediately suspend the Services to any ISO in respect of which a claim is made against IRIS that relates to any such dispute. For example, but without limitation, if a User seeks an injunction against IRIS to gain access to the Services in relation to a dispute with its ISO or otherwise, IRIS reserves the right to terminate this Agreement or suspend the Services to such ISO and all its Users. Without limitation, the ISO shall be responsible for IRIS legal fees incurred in responding to any such injunction or related claim.
Fees and Payment for Services
1. Fees. In consideration of the Services, ISO shall pay Fees. Except as otherwise specified herein or in an Order Form: (i) Fees are quoted and payable in United States dollars; (ii) Fees are based on Services purchased and not usage; (iii) in the event that ISO adds Active Accounts during the billing cycle that qualify for the next tier as specified in the order form, the Fees for these Active Accounts will be prorated for the portion of the billing cycle remaining at the time the Accounts are added and will be invoiced on the following billing cycle; (iv) payment obligations are non-cancelable and Fees paid are non-refundable, Fees are based on periods that begin on the Subscription Term start date and each billing anniversary thereof; and (v) in the event that this Agreement is terminated prior to the end of the then current Term, other than for material and uncured default by IRIS, ISO shall remain liable for all Fees that would apply through to the end of the current Term. At the time of termination IRIS will calculate the effective monthly average of the Fees that were paid to IRIS by ISO per month for the past 3 consecutive months and multiply the result by the remaining time left in ISO’s Subscription Term which is the “Early Termination Fee” and will be paid by ISO to IRIS within thirty (30) days of Termination. If, for any reason, Fees are not collected via ACH, ISO shall cause them to be paid to IRIS as and when due by wire transfer, or other means acceptable to IRIS, to an account designated for such purposes by IRIS. Fees for the Dialer Services that are based on minutes used, are rounded to the nearest minute, for example, a call lasting ten (10) minutes and fifteen (15) seconds will be considered eleven (11) minutes of billable talk-time.
2. Start of Fees. IRIS will perform an ACH debit to ISO DDA for the amount specified as due on the Order Form and at the time specified on the Order Form.
3. Invoicing and Payment. IRIS will provide invoices to ISO based on the billing term specified on the Order Form. ISO is responsible for maintaining complete and accurate billing and contact information with IRIS. In the event of a dispute regarding any invoice, ISO and IRIS agree to work together in good faith to resolve such dispute.
4. ACH Consent. ISO desires to effect settlement of credits and debits from the ISO DDA by means of ACH and/or wire transfer in conjunction with the Services provided hereunder. In accordance with this desire, ISO authorizes IRIS and/or its Affiliates to initiate debit and credit entries to the ISO DDA (the details of which are set out in the Order Form or entered into the Services). ISO agrees to maintain sufficient funds in ISO DDA to cover debit transactions. By signing this authorization, ISO states that it has authority to agree to such transactions and that the ISO DDA indicated is a valid and legitimate account for the handling of these transactions. This authority is to remain in effect until IRIS receives written notice from ISO revoking it. This authorization is for the payment of Fees, or any other sums owed to IRIS or IRIS’s Affiliates. ISO also certifies that the appropriate authorizations are in place to allow ISO to authorize this method of settlement. All changes to the identification of the ISO DDA under this authorization must be made in writing in accordance with the Agreement. ISO understands that if the information supplied as to the ABA Routing Number and ISO DDA Number of the ISO DDA is incorrect, and funds are incorrectly deposited, IRIS will attempt to assist ISO in the recovery of such funds but has no liability as to restitution of the same. IRIS’s assistance in recovering the funds, where available, will be billed to ISO at IRIS’s current hourly rate for such work. ISO acknowledges that the origination of ACH transactions to the ISO DDA must comply with the provisions of U.S. law.
5. Taxes. ISO shall pay all taxes applicable to Fees.
IRIS SECURITY, CONFIDENTIALITY AND NON-SOLICITATION UNDERTAKINGS
1. Protection of ISO Data. IRIS shall use commercially reasonable efforts to not disclose ISO Data to third parties except as compelled by Law, or as permitted by ISO. IRIS is not, however, responsible for: (i) the loss or destruction of any ISO Data by any means other than by the gross negligence of IRIS; (ii) breach of ISO Data due, in whole or in part to an unsecure connection being used by ISO, a User, Account or Processor, or any of their authorized or unauthorized designees; or (iii) breach of ISO Data on account of a breach in the ISO Site or ISO Systems. ISO acknowledges that it is an industry best practice to backup ISO Data onto its own secure ISO Systems on a regular basis.
2. IRIS Non-Solicitation Obligation. IRIS SHALL NOT USE ISO DATA TO SOLICIT ANY OF ISO’s USERS OR ACCOUNTS TO EITHER TERMINATE THE RELATIONSHIPS THEY HAVE FORMED THROUGH OR WITH ISO OR ENTER INTO NEW RELATIONSHIPS WITH IRIS OR WITH ANY THIRD PARTY FOR SERVICES THAT ARE SIMILAR OR COMPETITIVE WITH THOSE PROVIDED BY OR THROUGH ISO (THE “NON-SOLICITATION OBLIGATION“). IRIS’ CONSIDERATION FOR THE NON-SOLICITATION OBLIGATION IS ISO’S GRANTING TO IRIS ACCESS TO ISO DATA FOR THE PURPOSE OF PERFORMING THE SERVICES UNDER THIS AGREEMENT. THE NON-SOLICITATION OBLIGATION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT FOR TEN (10) YEARS, REGARDLESS OF THE CAUSE OF SUCH TERMINATION.
3. Password Security. One of the most important security features used today are passwords. ISO and all Users shall use only secure and un-guessable passwords. There is no way for IRIS to recall ISO or User passwords once they are created, only the ability to reset them at ISO or User request. IRIS recommends Users change their passwords every 60 days. Password information sent via an unencrypted communication method can cause eavesdropping on the packet data that ISO or a User may send or receive. Such methods of transmitting unencrypted password data to avoid are email and remote logins as eavesdropping of such sensitive information can occur. The ISO and its Users are solely responsible for any password breaches that may occur due to password exposure by or because of them.
4. Aggregated Data. Notwithstanding the foregoing, IRIS may collect, use and disclose aggregated data concerning ISO, Users, their Accounts, Processors and other information processed through the Services (“Aggregated Data“) provided, however, that no such use shall or may be likely to facilitate in IRIS or any third party being able to access any information concerning any individual Account or Agent of the ISO or in any way damage the business of the ISO. Aggregated Data will not permit any user thereof to identify the ISO or its individual portfolio of Accounts with any individual Processor. Aggregated Data, if any, shall be the sole property of IRIS.
5. Compelled Disclosure. The IRIS may disclose ISO Data of the ISO if it is compelled by Law to do so, provided the IRIS gives the ISO prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the ISO’s cost, if the ISO wishes to contest the disclosure. If the IRIS is compelled by law to disclose the ISO’s ISO Data as part of a civil proceeding to which the ISO is a party, and the ISO is not contesting the disclosure, the ISO will reimburse the IRIS for its reasonable cost of compiling and providing secure access to such ISO Data.
6. IRIS Confidential Information. ISO shall not use any information concerning this Agreement or the Services or, except as required by Law, stock exchange rules, or the Rules, disclose it to any third party except as expressly permitted by IRIS in writing all of which information shall be and remain the sole and exclusive proprietary confidential information of IRIS.
Covenants, Representations and Warranties
1. The parties represent, warrants and covenants as follows:
  1. Good Standing. Each party is a limited liability company organized, validly existing and in good standing under the Laws of the state where its principal office is located.
  2. Full Authority. Each party has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement.
  3. Processor Agreement Valid. ISO represents and warrants that the Processor Agreement remains valid and in force; ISO is not in breach of the Processor Agreement. Neither ISO nor any User is in breach of any of the ISO Conditions.
  4. IRIS Services Not a Breach of Processor Agreement. ISO represents and warrants that performance by the ISO under this Agreement does not constitute a breach of the Processor Agreement, Rules or Laws. ISO has verified that none of the Processor Agreement or the terms and conditions applicable to the Processor Site prohibit or are inconsistent, in letter or spirit, with the use by the ISO and its Users of the Services. IRIS does not have access to the Processor Agreement and shall not verify the Processor Site terms and conditions to verify whether ISO would be in breach thereof in using the Services. ISO shall, from time to time, verify that it is not in breach of the Processor Agreement or the terms and conditions applicable to the Processor Site, as they may change from time to time. Nothing in this Agreement shall be deemed to amend or alter the terms of the Processor Agreement, nor shall this Agreement be deemed to be a part of or in any way associated with the Processor Agreement, Account Agreement or Agent Agreement. ISO acknowledges that, as between ISO and Processor, some ISO Data may belong to the Processor and ISO represents that ISO performance hereunder does not breach the ISO’s obligations in that regard.
  5. ISO Title in Information. ISO shall not enter or cause to be entered any data or information into the Service unless and to the extent that ISO has the right to such information. For example, but without limitation, ISO will not use the Service to store data that is stolen or that has been otherwise misappropriated from a third party.
  6. No Violation. ISO represents and warrants that ISO’s performance of this Agreement will not violate any Law or any agreement or Rule to which that party may now be bound.
  7. Enforceability. This Agreement represents a valid obligation of each party and is fully enforceable against it.
  8. Compliance. ISO will comply with the terms of this Agreement, with all applicable Rules.
  9. No Litigation. Neither party, nor its officers and directors are a party to any pending litigation that would have an impact on this Agreement and have never been fined or penalized by Payment Networks, NACHA or any other association in the credit, payments or banking industry.
  10. Business. In entering into and performing under this Agreement ISO is doing so as a business enterprise and not as an individual consumer.
LIMITATIONS.
1. WITH THE EXCEPTION OF THOSE WARRANTIES SET IN SECTION 6 OF THIS AGREEMENT, IRIS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND/OR THE PERFORMANCE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
2. Without limitation, IRIS makes no representation as to the continued availability of the Dialer Service on an uninterrupted or error free basis. Without limitation, IRIS shall not be liable for any interruptions in the Dialer Service that, or other Services, that: (i) are caused by factors outside of IRIS’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of IRIS or its direct hosting subcontractors (i.e beyond the point in the network where IRIS maintains access and control over the Dialer Services); (ii) result from any actions or inactions of ISO or any third party (other than IRIS’s direct hosting subcontractor); (iii) result from applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within IRIS’s direct control); or (iv) arise from IRIS’s suspension and termination of ISO’s right to use the Dialer Services in accordance with the TOS, (v) scheduled maintenance; or (vi) problems or issues related to alpha, beta or not otherwise generally available IRIS features or products.
3. ISO’s sole remedy in respect of any and all interruptions of the Dialer Service shall be credit equivalent to the amount paid by the ISO for the time during which the Dialer Service was unavailable calculated by multiplying the Fee paid in respect of the Dialer Service for the month in question and multiplying it by the percentage of such month during which the Dialer Service was not available.
4. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR LOSS OF PROFITS OR ANTICIPATED PROFITS OR BENEFITS, REGARDLESS OF HAVING BEEN APPRISED OF THE POSSIBILITY THEREOF. THESE LIMITATIONS SHALL APPLY TO ALL CLAIMS OR CAUSES OF ACTION BY ISO AGAINST IRIS UNDER OR IN CONNECTION WITH THE LICENSE OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, PERSONAL INJURY, AND OTHER TORTS AND CONTRACT CLAIMS. UNDER ANY AND ALL CIRCUMSTANCES, IRIS’ MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID TO IT HEREUNDER FOR THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION 8.4 SHALL NOT APPLY TO EITHER PARTY’S BREACH OF THE CONFIDENTIALITY AND NON-SOLICITATION COVENANTS HEREIN IN WHICH CASE EACH PARTY’S LIABILITY IS LIMITED TO A MAXIMUM OF THE TOTAL AMOUNT PAID TO IRIS IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
5. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 6 OF THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS AND WITH ALL FAULTS” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IRIS DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANDNON-INFRINGEMENT WITH RESPECT TO THE SERVICES AND THE ACCOMPANYING DOCUMENTATION. IRIS ASSUMES NO RESPONSIBILITY FOR SELECTING THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SERVICES. WITHOUT LIMITING THE FOREGOING PROVISIONS, IRIS MAKES NO WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET THE REQUIREMENTS OF ISO. THE SERVICES ARE NO GUARANTEE THAT YOUR ISO BUSINESS WILL IMPROVE OR GENERATE MORE INCOME. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. WITHOUT LIMITATION, IRIS ASSUMES NO LIABILITY FOR THE LACK OF LEGAL ENFORCEABILITY OF ANY AGREEMENT FORMED OR THAT ISO ATTEMPTS TO FORM THROUGH THE SERVICES OR ANY PART THEREOF SUCH AS TURBOAPP, E-SIGNATURE SERVICES OR DIALER SERVICES.
7. Inter-ISO Solicitation. It shall not be a breach of the terms of this Agreement by IRIS for an ISO or User to solicit the Accounts of another ISO or User of another ISO (“Inter-ISO Solicitation“). Inter-ISO Solicitation may be a breach of agreements between ISOs, Processors, Acquiring Banks and Users, but IRIS is not party to and such agreements and shall not be responsible for any breach of such agreements whether or not they occur in respect of Accounts whose information is included in ISO Data. In the event of perceived, actual or attempted Inter-ISO Solicitation, IRIS shall not divulge ISO Data to assist in the resolution of any claims related thereto other than pursuant to a court order. ISO shall be responsible for any and all legal fees of IRIS in association with responding to any claims related to such an order or other matters related to Inter-ISO Solicitation. IRIS does not have the obligation to monitor new Accounts for any of its ISOs or clients to see that they are or are not migrated from one ISO to another or to see that such migration is prevented.
Indemnification
1. Subject to the limitations on liability set out in Section 8, each party agrees to indemnify, defend, and hold harmless the other party, its Affiliates, officers, directors, employees, licensors and permitted assigns from and against any loss, liability, damage, penalty or expense (including reasonable attorney’s fees and cost of defense) (“Damages“) suffered or incurred as a result of: (i) any breach of its obligations under this Agreement; (ii) any warranty or representation made pursuant to this Agreement being false or misleading; (iii) any representation or warranty made by such party to any third person other than as specifically authorized by this Agreement; (iv) any failure by ISO or any of its Users to fully comply with the applicable Rules and requirements of any Regulatory Authority, (v) any fraud by such party or, in the case of ISO, any of its Users; (vi) any wrongful act of any that would constitute a breach of such party’s obligations under this Agreement or is a violation of the Rules; or (vi) in the case of ISO, any claim or dispute (“Dispute“) that relates to the ownership, control, entitlement, enforceability or operation of ISO in connection with ISO’s rights, interests, duties and obligations under this Agreement or any agreement formed while using the Services, such as, for example, an ISO Electronic Record or Account Agreement, regardless of whether IRIS is named as a defendant or otherwise involved or subpoenaed to provide exports in such Dispute. Notwithstanding the foregoing, IRIS indemnification obligations shall extend only to its breaches of Section 6 hereof.
2. Without limitation, ISO shall indemnify IRIS for any and all attorney fees and other costs associated with responding to any subpoena for ISO Data. Notwithstanding any provision herein to the contrary, it shall not be a breach of the terms of this Agreement for IRIS to delivery ISO Data to a third party upon receipt by IRIS of a subpoena for such ISO Data, or if IRIS reasonably believes that use or disclosure is necessary to protect the IRIS’ rights and/or to comply with a judicial proceeding, court order, or legal process.
Term and Termination
1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscription Terms granted in accordance with this Agreement have expired or been terminated, or until it is terminated pursuant to the other provisions hereof. IRIS may terminate this Agreement on sixty (60) days prior written notice for any reason or no reason. IRIS may terminate this Agreement immediately on notice to ISO in event of a Force Majeure.
2. Subscription Terms. Except as otherwise specified in the applicable Order Form, all Subscriptions are specified on the Order Form and shall automatically renew for additional and successive periods equal to the expiring Subscription Term, unless either ISO gives IRIS notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term. IRIS may increase per unit pricing once in any twelve (12) month period. Notice of any price increases shall be given by IRIS to ISO not less than sixty (60) days prior to its effectiveness.
3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4. Refund or Payment upon Termination. Upon any termination for cause by ISO, IRIS shall refund ISO any prepaid Fees for Subscription Terms that will be unused on account of the termination. Upon any termination for cause by IRIS, ISO shall pay any unpaid Fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve ISO of the obligation to pay any Fees payable to IRIS for the period prior to the effective date of termination.
5. Data Transfer. If the ISO needs to have its data exported from IRIS, it must give notice to IRIS of no less than twenty (20) days prior to termination of this Agreement. ISO will provide to IRIS with express written instructions (“Deconversion Instructions“) as to what ISO Data the ISO wishes to export prior to termination (such data being the “Deconversion Data“). Deconversion Data may contain only those elements of ISO Data that are present in the Services on receipt by IRIS of the Deconversion Instructions. IRIS shall provide ISO with access to a copy of the Deconversion Data in a reasonably useful format, as determined by IRIS in its sole but reasonable discretion until 11:59pm on the last day of the Subscription Term. ON THE EXPIRATION OF THE SUBSCRIPTION TERM, IRIS SHALL IRRETRIEVABLY DELETE DECONVERSION DATA AND ISO DATA THAT ARE IN ITS POSSESSION OR CONTROL. IRIS may, however, at its discretion, retain a record of ISO contact information, this Agreement, correspondence with IRIS under this Agreement and Fees paid or owing hereunder.
License for Marketing and Promotional Activities.
1. Marketing License. Subject to the terms and conditions of this Agreement, each party hereby grants to the other a worldwide, non-exclusive, non-assignable, non-sublicensable, royalty-free, paid up, limited license to use and display the party’s marks and names (such marks and names being the “Marks” and such license being the “Marketing License“).
2. Marketing License Guidelines. In its use of the Marks of the other party (“Licensor“), each party (“Licensee“) will comply with any trademark usage guidelines that Licensor may communicate to Licensee from time to time. Each use of Licensor’s Marks by Licensee will be accompanied by the appropriate trademark symbol (either “™” or “®”) and a legend specifying that such Marks are trademarks of Licensor as specified by the Licensor, and will be in accordance with Licensor’s then-current trademark usage policies as provided in writing to Licensee from time to time. Licensee will provide Licensor with copies of any materials bearing any of Licensor’s Marks as requested by Licensor from time to time. If Licensee’s use of any of Licensor’s Marks, or if any material bearing such Marks, does not comply with the then-current trademark usage policies provided in writing by Licensor, Licensee will promptly remedy such deficiencies upon receipt of written notice of such deficiencies from Licensor. Other than the express licenses granted herein with respect to each Licensor’s Marks, nothing herein will grant to Licensee any other right, title or interest in Licensor’s Marks. All goodwill resulting from Licensee’s use of Licensor’s Marks will inure solely to Licensor. Licensee will not, at any time during or after this Agreement, register, attempt to register, claim any interest in, contest the use of, or otherwise adversely affect the validity of any of Licensor’s Marks (including, without limitation, any act or assistance to any act, which may infringe or lead to the infringement of any such Marks).
3. Reservation of Rights. The parties acknowledge and agree that, except for the rights and licenses expressly granted by each party to the other party under this Agreement, each party will retain all right, title and interest in and to its products, services, Marks, and all content, information and other materials on its website(s), and nothing contained in this Agreement will be construed as conferring upon such party, by implication, operation of Law or otherwise, any other license or other right.
General
1. Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing with confirmation of delivery; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to ISO shall be addressed to the system administrator designated by ISO for ISO relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by ISO.
2. Publicity. For the term of this Agreement, ISO grants IRIS the right to use the name and logo of ISO on the Site, indicating that ISO is a client of IRIS. Except for the foregoing, neither party shall make any public announcements or issue any press releases concerning this Agreement other than as may be approved in writing by both parties hereto.
3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of New York without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts of the State of New York, in the county where IRIS is located.
4. Waiver of Jury Trial. Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
6. No Third‐Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
7. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of any other remedies of a party at law or in equity.
8. Amendment. This Agreement may be amended by: (i) a writing between the parties hereto; (ii) by acceptance of a new version hereof on the Site by the ISO or User; or (iii) by IRIS posting notices of amendments hereto on the Site and ISO or any of its Users continuing to use the Services for thirty (30) days following such postings.
9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10. Attorney Fees. ISO shall pay on demand all of IRIS’ reasonable attorney fees and other costs incurred by IRIS to collect any fees or charges due IRIS under this Agreement following ISO breach of Fee payment obligations.
11. Assignment. ISO may not assign its rights or obligations hereunder without prior written consent of IRIS, except to an Affiliate or to a party acquiring substantially all of ISO’s assets, directly or by operation of law provided that such assignee shall also assume ISO’s obligations hereunder. IRIS may assign its rights and obligations hereunder on notice to an Affiliate or to a party acquiring substantially all of IRIS’ assets, directly or by operation of law.
12. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire Agreement between the parties and supersedes all prior and contemporaneous Agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail to the extent executed by IRIS and ISO. Notwithstanding any language to the contrary therein, no terms or conditions stated in ISO purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
13. Electronic Signatures. Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when: (1) ISO or User’s electronic signature is associated with the Agreement and related documents, (2) ISO or User consents and intend to be bound by the Agreement and related documents, and (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). When accepted in electronic form, this Agreement and all related electronic documents shall be governed by the provisions of E-Sign. By pressing “Submit”, “Accept” or “I Agree”, ISO or User, as the case may be, agrees: (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, and (iii) that it has had the ability to print or otherwise store the Agreement and related documents.
14. Survival. The following provisions of this Agreement shall survive termination of this Agreement: 1 Definitions, 2.6 Limitations on Use Right, 5 Fees (as to unpaid Fees that are owing), 6 IRIS Security, Confidentiality and Non-Solicitation Undertakings, 8 Limitations, 9 Indemnification, 10 Term and Termination, 11 Marketing License and 12 General.
15. Force Majeure. IRIS shall not be liable for a failure to perform hereunder on account of a Force Majeure.

Terms of Use

Last Updated: June 22, 2021

THESE TERMS OF USE (“TERMS OF USE” OR THIS “AGREEMENT”) BETWEEN YOU AND AGREEMENT EXPRESS, INC. (“AGREEMENT EXPRESS”) CONTAIN THE TERMS AND CONDITIONS GOVERNING YOUR USE OF THE AGREEMENT EXPRESS WEBSITES (including https://agreementexpress.com, https://agreementexpress.net, https://us.agreementexpress.net), MOBILE APPLICATIONS, AND SERVICES OFFERED THROUGH THE AGREEMENT EXPRESS PLATFORM (COLLECTIVELY, THE “SERVICE”). THE SERVICE IS OWNED AND OPERATED BY AGREEMENT EXPRESS, INC. BY ACCESSING OR USING THE SERVICE, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT; (C) ACCEPT THIS AGREEMENT (AS MAY BE AMENDED FROM TIME TO TIME BY AGREEMENT EXPRESS) AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

These Terms of Use do not alter in any way the terms or conditions of any of those other written agreements you (or as an authorized user of a company) may have or will have with Agreement Express for the use, access, and/or subscription of the Service, including, without limitation, an Order Form and its general terms, exhibits, schedules, attachments, appendices, and any related Statements of Work (collectively the “Subscription Agreement”). To the extent that there is any conflict between these Terms of Use and a Subscription Agreement, the following order of precedence governs: (i) first, the applicable Order Form related to the Subscription Agreement; (ii) second, the General Terms, (iii) third, the exhibits, schedules, attachments, appendices to such Order Form; and (iv) fourth, these Terms of Use.

ACCORDINGLY, YOU AGREE AS FOLLOWS:

1. License Grant. Subject to the terms and conditions of this Agreement, Agreement Express hereby grants to you a personal, limited, non-exclusive, non-transferable, revocable license to access the Service solely for your internal business purposes and solely for the purpose of digitally signing various agreements, contracts, acknowledgments and other materials (collectively, “Third Party Contracts”). This license is restricted to use by you and does not include the right to use the Service on behalf of any third party or the right to permit any other person to access or use the Service. This license is conditioned on your continued compliance with the terms and conditions in these Terms of Use. You are responsible for maintaining and safeguarding the security of your account and password and you shall not share your password with any other person or allow any other person to access the Service under your account. Agreement Express reserves the right to immediately suspend your access to the Service if you fail to comply with this Agreement. Any information or data that you provide to Agreement Express may be used by Agreement Express in accordance with its privacy policy https://www.agreementexpress.com/privacy (“Privacy Policy”). By accessing or using, and providing information to or through, the Service, you consent to all actions taken by Agreement Express with respect to your information or data in compliance with the Privacy Policy.

2. Restrictions. Unauthorized use, resale or commercial exploitation of the Service in any way is expressly prohibited. Without Agreement Express’ express prior written consent in each instance, you shall not: (i) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise make available the Service, whether in whole or in part, to any third party for any reason; (ii) copy, modify, make derivative works of, disassemble, reverse compile, or reverse engineer, or otherwise attempt to derive or gain access to the source code of the Service or any part of the Service; (iii) access the Service in order to build a similar or competitive website, application, product, or service; (iv) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Service, including any copy thereof, (v) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Service; or (vi) input, upload, transmit, or otherwise provide to or through the Service any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code or viruses. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service shall be subject to these Terms of Use. You shall not attempt to access any other of Agreement Express’ systems, programs or data that are not made available for public use.
Agreement Express may from time to time in its sole discretion develop and provide Service updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. Unless otherwise expressly agreed to in writing by Agreement Express, you agree that Agreement Express has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed part of the Service and be subject to all terms and conditions of these Terms of Use.

3. Ownership. You acknowledge and agree that as between Agreement Express and you, all right, title, and interest in and to the Service (including, without limitation, all software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Agreement Express in providing the Service and all derivatives thereof (including any and all intellectual property rights therein) are and shall remain Agreement Express’ or its licensor’s, and this Agreement in no way conveys any right or interest in the foregoing other than a limited license to use them in accordance herewith. The Agreement Express name, the Agreement Express logo, and the product names associated with the Service, including, but not limited to “Agreement Express”, are trademarks of Agreement Express or third parties, and no right or license is granted to use them. Agreement Express and its suppliers reserve all rights not granted in these Terms of Use. There are no implied licenses granted under these Terms of Use.

4. Data and Content: Warranty. You hereby represent, warrant, and covenant to Agreement Express as follows: (i) that you have provided Agreement Express with your true, legal identity in connection with your registration to use the Service and your creation of a digital identity, (ii) that you understand and acknowledge that by digitally signing a Third Party Contract via the Service, you are becoming a party thereto, (iii) that while your digital certificate is being created with Agreement Express, Agreement Express is not a party to any of the Third Party Contracts that you digitally sign in connection with the Service and shall have no obligation or liability to you or any other person in connection with such Third Party Contract whatsoever, (iv) that you will use the Service in a manner consistent with applicable laws and regulations and in accordance with the terms and conditions in this Agreement as it may be amended by Agreement Express from time to time, and (v) that you have all requisite power and authority to execute and deliver the Third Party Contracts and to perform your obligations thereunder and your execution and delivery of such Third Party Contracts constitute your valid and binding obligation and are enforceable in accordance with its terms. The entry of any authentication code or other confirmation of your digital identity if requested during a transaction shall be deemed to be your act and acceptance of the execution and delivery of an applicable Third Party Contract. You agree that Agreement Express may update your digital identity and certificates as necessary to reflect your user inputs and the name you use to sign any documents. You hereby grant to Agreement Express a limited, non-exclusive, non-transferable, royalty-free right to store and use your digital identity solely in connection with providing the Service and/or to enforce these Terms of Use and exercise and perform Agreement Express’s rights hereunder. Except as provided in this Agreement, you shall be solely responsible for providing, updating, uploading and maintaining all of your data and information required to use the Service. You assume all risks and shall be responsible for all data and information that you provide or use with the Service, including any reliance on its accuracy, legality, right to use, completeness or usefulness by others, or any disclosure of your data and information that personally identifies you or any third party. You shall not use the Service to upload or otherwise transmit, display, or distribute any data or information that (xi) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (xii) contains any material that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, libelous, obscene, embarrassing, patently offensive or is otherwise objectionable,;(xiii) impersonates any person, or misrepresents your identity or affiliation with any person or organization; or (xiv) is in violation of any law, regulation, or obligations or restrictions imposed by any third party. Agreement Express does not guarantee the accuracy, integrity, or quality of your data or any other data made available to you via the Service.
The Service may display, include, or make available third-party content (including Third Party Contracts, data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Agreement Express is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Agreement Express does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions, as applicable.

5. Warranty Disclaimer. THE SERVICE IS BEING PROVIDED TO YOU “AS IS”. YOU ACKNOWLEDGE AND AGREE THAT ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND ALL OBLIGATIONS AND REPRESENTATIONS AS TO PERFORMANCE, INCLUDING ALL WARRANTIES WHICH MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OR TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY AGREEMENT EXPRESS. AGREEMENT EXPRESS DOES NOT MAKE ANY WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; BE AVAILABLE TO YOU OR THAT ANY OTHER DATA MADE AVAILABLE TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICE WILL BE ACCURATE OR UNINTERRUPTED, OR ERROR FREE; OR FREE FROM VIRUSES OR OTHER HARMFUL CODE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

6. Indemnification. You agree to indemnify and hold Agreement Express (and its affiliates, officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Service, (ii) your violation of these Terms of Use, (iii) your violation of applicable laws or regulations, or (iv) your infringement or misappropriation of any intellectual property right or your violation of any other proprietary or privacy right. Agreement Express reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Agreement Express, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Agreement Express.

7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL AGREEMENT EXPRESS OR ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS, OR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH YOUR USE OF THE SERVICE, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE). THE MAXIMUM AGGREGATE LIABILITY OF AGREEMENT EXPRESS TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO $100. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

8. Term and Termination. The term of this Agreement commences when you access and use the Service in accordance with this Agreement and will continue in effect until terminated by you or Agreement Express as set forth in this Section. You may terminate your use of the Service at any time by ceasing further use of the Service. Agreement Express may terminate, modify, suspend, and deny you access to the Service (in whole or in part) at our sole discretion for any reason or no reason. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. You agree that Agreement Express will not be liable to you or to any third party for any termination, modification, suspension, discontinuation, or denial of access to, the Service or any part thereof. Upon termination of this Agreement for any reason, all rights granted to you will also terminate. Termination will not limit any of Agreement Express’ rights or remedies at law or in equity.

9. Governing Law. All matters relating to this Agreement, and any dispute or claim arising therefore or related thereto, shall be interpreted according to the laws of the state of Wisconsin without regard to or application of choice-of-law rules or principles.

10. Arbitration and Class Action Waiver. PLEASE READ THIS SECTION 10 CAREFULLY. BY AGREEING TO THIS AGREEMENT, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST AGREEMENT EXPRESS ON AN INDIVIDUAL BASIS IN ARBITRATION, SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SECTION 10, WHICH IS REFERRED TO AS THE “ARBITRATION AGREEMENT.” THIS ARBITRATION AGREEMENT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. IT ALSO CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
This Arbitration Agreement is intended to be interpreted broadly and governs any and all disputes between the parties, including but not limited to claims arising out of or relating to any aspect of the relationship between the parties, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property as provided below. By agreeing to this Arbitration Agreement, you agree to resolve any and all disputes with Agreement Express as follows:
(a) Initial Dispute Resolution: Most disputes can be resolved without resorting to arbitration or litigation (as expressly permitted herein). Except for intellectual property claims, the parties hereby agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Agreement Express’ support department, and such good faith negotiations shall be a condition prior to either party initiating arbitration or litigation (as expressly permitted herein). You can reach Agreement Express’ support department at support@agreementexpress.com or +1-877-247-3397.
(b) Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above in Section 10(a), then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement, the parties’ relationship with each other, and/or your use of the Service shall be finally settled by binding arbitration, administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Unless otherwise agreed to, all arbitration proceedings shall be held in English and in accordance with governing law set forth in Section 9 above. The arbitration shall be conducted before a single arbitrator. The parties shall use their reasonable efforts to select a mutually acceptable arbitrator, however, if the parties have not selected a mutually acceptable arbitrator within thirty (30) days after the commencement of the arbitration, the arbitrator shall be selected in accordance with the rules of the applicable arbitration rules and procedures as set forth above. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be final and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You and Agreement Express agree to submit to the personal jurisdiction of any court of competent jurisdiction in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator
(c) Class Action Waiver. You acknowledge and agree that you are waiving the right to participate as a plaintiff or class in any purported class action or representative proceeding. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND AGREEMENT EXPRESS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this Section is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
(d) Exceptions: Litigation of Intellectual Property. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions (including injunctive or other equitable relief), validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any court of competent jurisdiction or in the U.S. Patent and Trademark Office to protect such party’s intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, trade secrets, and other intellectual property rights, but specifically excluding privacy or publicity rights).
(e) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration in accordance with the terms and conditions of this Arbitration Agreement. In the event any litigation should arise between you and the Agreement Express as permitted under this Arbitration Agreement or otherwise, YOU AND AGREEMENT EXPRESS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(f) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Section 10(f) shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(g) Survival. This Arbitration Agreement (including, without limitation, the Class Action Waiver provisions) shall survive any termination of your account and/or relationship with Agreement Express.

11. Miscellaneous. This Agreement contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Any obligation reasonably expected to survive termination or expiration of this Agreement shall survive. If any provision of this Agreement (including the Arbitration Agreement herein) is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. In the event that any action, suit, or other legal or administrative proceeding (including arbitration) is instituted or commenced by either party against the other party arising out of this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and arbitration and/or court costs from the non-prevailing party. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches and the waiver of any breach shall not act as a waiver of subsequent breaches. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. The provisions set forth in Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement. This Agreement shall not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

12. Changes. Agreement Express may revise these Terms of Use from time to time at its sole discretion. Agreement Express will post the revised terms on the Service with a “last updated” date. However, any changes or updates to the dispute resolution provisions set forth in these Terms of Use will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted. PLEASE REVIEW THE SERVICE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE SERVICE AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS OF USE.

General Terms & Conditions

Agreement Express Inc.’s General Terms and Conditions (“General Terms”)

Updated: March 2021

Upon Customer’s signature on an applicable Sales Order, the terms set forth below combined with the terms of the Sales Order, Information Security Guidelines and any Statement of Work form a binding contract between the Customer and AEX with respect to any and all services performed by AEX for Customer pursuant to such terms and are collectively referred to as the “Agreement” herein as between AEX and Customer.

Capitalized terms used in these General Terms shall have the following meanings:

“AEX” means Agreement Express Inc.

“AEX Content” means all Content made available by AEX to Customer in connection with Customer’s use of the Subscription Service.

“AEX Platform” means the online proprietary platform hosted by AEX and comprised of proprietary algorithms, software, and other technologies that allow Customer to remotely integrate, distribute, digitally sign, and track documents.

“AEX Services” or “Services” means either or both of the Subscription Services and/or Professional Services. “AEX Technology” means the AEX Platform, Subscription Services, the Documentation and all AEX and its Affiliate’s Intellectual Property Rights therein or associated therewith.

“Affiliate(s)” with respect to a Party means another entity controlled by, controlling or under common control with such Party, where “control” means the legal, beneficial, or equitable ownership, directly or indirectly, of more than 50% of the aggregate of all voting interests in such entity. Such other entity is an Affiliate only during the period that such “control” exists.

“Agreement” means these General Terms, the Sales Order, SOW(s) (each including all exhibits, schedules and other attachments) and the Information Security Guidelines.

“Content” means text, images, documents, materials, and all other forms of data or communication. “Customer Content” means all Content made available by Customer or its Users to AEX for use in connection with the Services or generated by Customer via use of the Services and includes, without limitation, all of Customer’s contracts and agreements to be digitally signed in connection with the Subscription Service. “Documentation” means any written documentation provided to Customer by AEX which are related to and describe any AEX Services.

“Intellectual Property” or “Intellectual Property Rights” collectively means any and all patents, patent registrations, patent applications, data rights, utility models, business processes, trademarks or names, service marks or names, trade secrets, know how, mask works, copyrights, moral rights and any other form of proprietary protection arising or enforceable under the laws of the United States, any other worldwide jurisdiction or any bilateral or multi-lateral treaty recognizing such rights.

“Party” means either AEX or Customer individually and “Parties” refers to AEX and Customer collectively. “Person” means any individual or legal entity.

“Professional Services” means those installation, set-up, integration, configuration, consulting, and/or training services to be provided by AEX as may be specified in an applicable SOW.

“Sales Order” means each Sales Order document signed or digitally accepted by duly authorized representatives of both Parties which incorporates these General Terms and the Information Security Guidelines and identifies the specific Services ordered by Customer, pricing therefore and other terms applicable to the AEX Services. “Statement of Work” or “SOW” shall mean a Statement of Work signed or digitally accepted by duly authorized representatives of both Parties which incorporates these General Terms Information Security Guidelines and identifies the specific terms and scope of the Professional Services ordered by Customer.

“Subscription Service” means the services offered through the AEX Platform provided by AEX as described in, and pursuant to, a Sales Order, for the benefit of Customer.

“Users” means each employee or contractor of Customer who has been granted access to the Subscription Service with the right to publish documents, Customer Content or access the “Agreement Workspace” portion of the Subscription Service.

“Work Product” means any materials, deliverables, programs, interfaces, modifications, configurations, reports, analyses or documentation developed by AEX on behalf of Customer and delivered to Customer in the performance of, and as described in the AEX Services or any Professional Services.

1. SERVICES

1.1 Services. AEX shall provide Customer with the applicable AEX Services as specified on a Sales Order and/or SOW.

1.2 Use of Subscription Services. The Subscription Services may only be used pursuant to the Agreement. The license and permitted use terms with respect to the Subscription Services will be set forth in the applicable Sales Order. AEX reserves all rights not expressly granted to Customer under the Agreement. AEX shall be free to use the ideas, concepts, techniques and know-how used and developed in connection with AEX’ offering of the Subscription Services.

1.3 Restrictions on Use. Customer agrees that neither it, nor its employees, agents or contractors will: (a) use any of the AEX Services in a manner that violates any applicable law or regulation; (b) decompile, reverse engineer, disassemble or otherwise reduce the AEX Technology to a human perceivable form or permit any other party to do so; (c) copy, modify, adapt, translate, rent, lease, sublicense, loan, resell, distribute, time-share, or create and derivative work of the AEX Technology; (d) permit works based on the AEX Technology; (e) create derivative works based on the AEX Technology; (f) copy, frame, or mirror any part of the AEX Content or Subscription Services, other than copying or framing on Customer’s own intranets or otherwise for its own internal business purposes as specifically authorized by AEX; or (g) use, provide access to, adapt, copy or otherwise exploit any AEX Technology or AEX Confidential Information (including any features, functions or graphics) in any way that would replace or obviate Customer’s need for the AEX’ products or services, or directly or indirectly compete with AEX’ products and services. Customer also may not permit or enable any other Person to do any of the foregoing. No Person other than Customer and the authorized Users, as specifically set forth in the applicable Sales Order may use or access the Subscription Services. All payments due AEX are based on the use of the applicable Services solely by AEX and the authorized Users.

1.4 Information Security and Privacy Policy. AEX will comply with the information security terms set forth on at the end of this document and AEX’s Privacy Policy as set forth at: https://agreementexpress.com/privacy/.

2. FEES; PAYMENT TERMS

2.1 Fees. All fees and charges will be set forth in the applicable Sales Order.

2.2 Payment. All fees, charges and expenses invoiced under the Sales Order will be due and payable by Customer in United States currency within thirty (30) days of the date of the invoice. Each invoice will set forth in reasonable detail the work covered by the invoice and the applicable fees. All fees payable under the Sales Order are exclusive of tax. Customer shall pay any taxes, including sales, use, personal property, value added, excise, customs fees or other taxes and duties imposed with respect to all Services under this Agreement, excluding only income taxes payable by AEX. Late payments shall accrue interest from the date due until the date paid at a rate of one percent (1%) per month, or the maximum rate allowed under applicable law, whichever is less. All payments under the Sales Order may be by electronic transfer pursuant to instructions provided by AEX or as set forth in the Sales Order.

3. CONFIDENTIALITY

3.1 Confidential Information. Each Party receiving information from the other Party (the “Receiving Party”) will not disclose or disseminate to any other person or entity, or use except as permitted by these General Terms, any information regarding the business, data, processes, technology, software or products of the Party disclosing information under these General Terms (“Disclosing Party”) and of third parties obtained during the course of performance under these General Terms (the “Confidential Information”). Each Receiving Party will ensure that any Confidential Information obtained from the Disclosing Party will be disclosed only to the Receiving Party’s employees and agents and only on a “need-to-know” basis, and that such employees and agents will be subject to a binding written obligation to maintain and not use (except as necessary to satisfy obligations under these General Terms) the confidentiality of the Confidential Information similar to the obligations under these General Terms. Nothing contained herein will be construed to restrict or impair in any way the right of the Receiving Party to disclose or communicate any information which Receiving Party can prove (a) is at the time of its disclosure hereunder generally available to the public; (b) becomes generally available to the public through no fault of the Receiving Party; or (c) is acquired by the Receiving Party from any third party having a right to disclose it to the Receiving Party. In the event that Receiving Party or anyone to whom Receiving Party has transmitted the Confidential Information pursuant to these General Terms becomes legally compelled to disclose any of the Confidential Information, Receiving Party will provide to the other promptly, written notice of such demand so that it may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of these General Terms. In the event that such protective order or other remedy is not obtained, or that Disclosing Party waives compliance with the provisions of these General Terms, Receiving Party will furnish only that portion of the Confidential Information which is legally required and will exercise its best efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.

3.2 Injunctive Relief. Notwithstanding any other provision of these General Terms, neither of the Parties will use any of the Disclosing Party’s Confidential Information in a manner inconsistent with the provisions of these General Terms that may cause the Disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, in addition to any other remedy to which the Disclosing Party may be entitled hereunder, at law or equity, the Disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.

3.3 Proprietary Rights. As between the Parties, (a) each Party retains ownership to its Confidential Information, (b) AEX shall exclusively own all right, title and interest in and to the AEX Technology (and all of the underlying technology, software and analytics) and AEX Content, any models, methods, algorithms, discoveries, inventions, modifications, customizations, derivatives, materials, ideas and other work product that is conceived, originated or prepared in connection with the Services, AEX Technology or related to these General Terms, and all related Intellectual Property Rights, and (c) Company shall exclusively own all right, title and interest in and to any Customer Content provided by Customer. Customer shall not remove or obscure any trademarks, copyright notices or other notices contained on materials accessed through the Subscription Services or AEX Technology. 3.4 Right to Use of Customer Content. Customer hereby grants to AEX a worldwide, non-exclusive, non transferable (except as expressly provided herein), fully-paid license and right to use the Customer Content to provide, improve or extend the AEX Technology and Subscription Services and other Services, including the right to perform research and development activities and to develop, provide and improve the Subscription Services and to offer additional services if allowed by Customer and applicable law.

4. LIMITED WARRANTY

4.1 Warranties. Each Party represents and warrants to the other: (a) that it is a corporation duly organized and existing under the laws of the state of its incorporation; (b) that it has the right to enter into the Sales Order including acceptance of the rights and obligations set forth in these General Terms; and (c) that its entry into the Sales Order including acceptance of the rights and obligations set forth in these General Terms will not cause a breach of its contractual obligations to third parties.

4.2 Subscription Services Warranties. All warranties applicable to the Subscription Services will be set forth in the applicable Sales Order.

4.3 Professional Services Warranties. All warranties applicable to the Professional Services will be set forth in the applicable SOW.

4.4 Disclaimer of Warranties. EXCEPT FOR THE FOREGOING EXPRESS WARRANTIES IN THE SALES ORDER AND THESE GENERAL TERMS, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, UNDER THE SALES ORDER OR THESE GENERAL TERMS AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES REGARDING MERCHANTABILITY, DESIGN, FITNESS FOR PURPOSE, NON INFRINGEMENT, ACCURACY CORRECTNESS OR COMPLETENESS OF DATA OR CORRESPONDENCE WITH DESCRIPTION AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AEX DOES NOT WARRANT THAT THE SERVICES, INCLUDING THE SUBSCRIPTION SERVICES PROVIDED HEREUNDER OR THE AEX TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR OPERATE UNINTERRUPTED, ERROR-FREE, THAT THE OVERALL SYSTEM THAT MAKES THE SUBSCRIPTION SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR WITHOUT DELAY. THE SERVICES, INCLUDING THE SUBSCRIPTION SERVICES PROVIDED HEREUNDER OR THE AEX TECHNOLOGY ARE PERFORMED AND PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. NO AGENT OF AEX IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF AEX AS SET FORTH HEREIN.

5. INDEMNIFICATION AND INSURANCE

5.1 AEX Indemnification. AEX shall defend, indemnify and hold harmless Customer and its employees, directors and officers and agents (collectively the “Customer Indemnitees”), from and against any and all third-party claims, actions, suits, investigations, governmental action, liabilities, judgments, demands, losses, damages, costs or expenses, including reasonable attorneys’ fees, arising out of: (a) infringement of the Subscription Services upon any third-party Intellectual Property Right recognized by the United States; or (b) any breach by AEX of Section 3 of these General Terms. AEX shall have no obligation to indemnify Customer for infringement claims to the extent based upon (i) any unauthorized use of the Subscription Services, (ii) the combination, operation or use of the AEX Technology or Subscription Services provided by the Customer with software, hardware, data or other technology or services not supplied by AEX; or (iii) modifications to the AEX Technology or Subscription Services that were not performed by AEX, or specifications, designs or other content not supplied by AEX. Should AEX Technology or Subscription Services become, or in AEX’ opinion be likely to become, the subject of a claim for infringement, AEX shall at its sole option and expense, (1) procure Customer the right to continue to use the AEX Technology or Subscription Services, (2) modify or replace the AEX Technology or Subscription Services with an offering that has comparable functionality to the AEX Technology or Subscription Services, so that the AEX Services or Subscription Services becomes non-infringing, or in the event options (1) and (2) are not reasonably available, (3) terminate any applicable Sales Order and discontinue the Subscription Services and Customer’s use of any AEX Technology. AEX reserves the right to modify the Subscription Services and/or AEX Technology at any time to make them non infringing. The foregoing remedies constitute Customer’s sole and exclusive remedies and the AEX’ entire liability with respect to infringement claims or actions.

5.2 Customer Indemnification. Customer shall defend, indemnify, and hold harmless AEX and its employees, directors, officers and agents (collectively the “AEX Indemnitees”), from and against any and all third party claims, actions, suits, investigations, governmental actions, liabilities, judgments, demands, losses, damages, costs or expenses, including reasonable attorneys’ fees, arising out of: (a) any unauthorized use by Customer of the AEX Technology or Subscription Services or breach of Customer’s warranties regarding any Customer Content; or (b) any breach by Customer of Section 3 of the General Terms.

5.3 Indemnification Procedures. A Party’s right to indemnification under this Agreement (such Party referred to herein as an “indemnified party”) is conditioned upon the following: (a) prompt written notice to the Party obligated to provide indemnification (such Party referred to herein as an “indemnifying party”) of any claim, action or demand

for which indemnity is sought; (b) control of the investigation, preparation, defense and settlement thereof by the indemnifying party; and (c) such reasonable cooperation by the indemnified party, at the indemnifying party’s request and expense, in the defense of the claim.

5.4 Insurance. AEX agrees to carry and maintain during the Term, at its own cost, the insurance policies and coverage amounts set forth below. AEX shall maintain such insurance with companies that are rated a minimum of A VII in AM Best’s Insurance Rating Guide or as are otherwise commercially reasonable for the scope and engagement between Customer and AEX. Upon Customer’s request, AEX shall provide evidence of such insurance and the certificates of insurance and AEX shall provide at least thirty (30) days advance written notice to Customer of any cancellation in such insurance coverage.

a. Statutory worker’s compensation in accordance with applicable state laws.

b. Employer’s liability insurance in an amount of not less than $1,000,000 each accident, each employee and policy limit.

c. Commercial general liability, including bodily injury, property damage, owners and contractor’s protective liability, products and completed operations liability and contractual liability, with a per occurrence limit of not less than $2,000,000 and a general aggregate limit of not less than $5,000,000.

d. Professional Liability – “Tech Risk” errors and omissions insurance in an amount of not less than a $5,000,000 aggregate limit.

e. Commercial Crime in a total combined limit of primary and excess coverage, any one occurrence of not less than fifty thousand Dollars ($50,000);

f. Automotive liability covering all vehicles non-owned or hired and leased with a combined single limit for bodily injury and property damage of not less than $1,000,000.

6. LIMITATION OF LIABILITY.

6.1 Limitation On Types of Recoverable Damages. EXCEPT WITH RESPECT TO THE INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 5 OR ANY VIOLATION OF AEX’S INTELLECTUAL PROPERTY RIGHTS BY CUSTOMER, NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS), REGARDLESS OF WHETHER THE CLAIM GIVING RISE TO SUCH DAMAGES IS BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. 6.2 Limitation on Maximum Damages. EXCEPT WITH RESPECT TO THE INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 5, IN NO EVENT SHALL THE COMPANY BE LIABLE TO CLIENT FOR DAMAGES UNDER THIS AGREEMENT (WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, WARRANTY, TORT, NEGLIGENCE, OR OTHERWISE) FOR THE APPLICABLE SERVICE IN EXCESS OF THE TOTAL FEES PAID BY CLIENT TO THE COMPANY DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY.

7. TERM

7.1 Term. The term for the Subscription Services shall be as set forth in the Sales Order (the “Term”) and shall commence as of the Activation Date and shall automatically renew for an additional term equal to the initial period (“Renewal Term”), unless either Party provides written notice to the other at least thirty (30) days prior to the end of the Term or any Renewal Term.

7.2 Termination. Either Party may terminate a Sales Order and the effect of these General Terms upon the occurrence of any of the following events: (a) a breach by the other Party of any material provision of these General Terms or the Sales Order or numerous breaches of duties or obligations thereunder that cumulatively constitute a material breach of the General Terms or Sales Order, and the breaching Party fails to cure such breach(es) within thirty (30) days from receipt of written notice from the non-breaching Party identifying such breach(es); or (b) if the other Party ceases to conduct business in the ordinary course or is declared insolvent or bankrupt, or makes an assignment of substantially all of its assets for the benefit of creditors, or a receiver is appointed, or any proceeding is demanded by, for or against the other Party under any provision of bankrupt or insolvency legislation. 7.3 Effect of Termination. Upon the expiration or termination of the Sales Order and these General Terms: (a) Customer will have no further rights with respect to the Subscription Services and/or AEX Technology; (b) Customer agrees to exercise due diligence and care to remove all copies of any AEX Technology including any software used in conjunction with the Subscription Services from Customer controlled hardware and to return to AEX all documentation, electronic disk and electronic tape media or other materials delivered to Customer under the Sales Order and General Terms; (c) AEX agrees to exercise due diligence and care to remove all copies of any of Customer Content used in conjunction with the Subscription Services and to return to Customer all documentation, electronic disk and electronic tape media or other materials delivered to AEX under the Sales Order and these General Terms; (d) all fees due or payable as of the termination date shall become immediately due; and (e) all fees earned or unpaid as of the Activation Date of termination shall become immediately payable to AEX. 7.4 Survival. Sections 5.1, 5.2, 5.3, 6 (all sections), 7.3, 7.4 and 8 (all sections) of these General Terms will continue in effect after termination of the Agreement.

8. PROVISIONS OF GENERAL APPLICABILITY

8.1 Independent Contracting Parties. Nothing in the Agreement creates a joint venture, partnership, principal agent or mutual agency relationship between the Parties. No Party has any right or power under the Agreement to create any obligation, expressed or implied, on behalf of the other Party or to act for or bind the other party in any manner, except as expressly provided for in the Agreement. No employee of a Party will be deemed to be an employee of the other Party by virtue of the Agreement. As an independent contractor, AEX and its employees, agents or contractors shall not participate in, nor be eligible under, any of Customer’s employee benefit plans, nor shall AEX receive any other employee benefits from Customer.

8.2 Assignment. Neither Party may assign or subcontract its rights or obligations under the Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign its rights under the Agreement to an Affiliate or a party purchasing the portion of such Party’s business to which the Agreement relates, whether by merger, asset sale, stock sale or otherwise, without the other Party’s consent. Further, AEX may perform any or all of its obligations through an Affiliate or a third-party contractor so long as AEX remains responsible for such obligations.

8.3 Non-Waiver. Neither Party will, by the lapse of time, and without giving written notice, be deemed to have waived any of its rights under the Agreement. No waiver of a breach of the Agreement will constitute a waiver of any prior or subsequent breach of the Agreement.

8.4 Order of Precedence. In the case of any conflict between the provisions of the General Terms, Sales Order or SOW, with respect to the subject matter of the given Sales Order, the provisions of these General Terms shall control, then the Sales Order, then the SOW.

8.5 Notices. Notices given under the Agreement must be in writing and must be (a) served personally, or (b) delivered by first class U.S. mail, certified or registered, postage prepaid and addressed to the addressees set forth in the Sales Order, or (c) delivered by overnight courier service, addressed to the addressees as set forth therein. Notices will be deemed received at the earlier of actual receipt in the case of personal service, overnight courier, or U.S. Mail delivery. The Parties may change their addresses in the Sales Order by giving notice of such change to the other Party as provided in this Section.

8.6 Media Releases. All media releases, public announcements, or public disclosure for general distribution (including, but not limited to, promotional or marketing material) by either Party, or by their employees or agents, relating to the Agreement, its existence, terms or subject matter, other than general statements that a contractual relationship exists between the Parties, will be coordinated with and approved in writing by the other Party prior to its release.

8.7 Use of Trademarks. Any use of AEX’ trademarks or service marks is subject to Customer’s submission of the proposed use in each instance and AEX’ right to review and approve such proposed use. 8.8 Severability. If any part of the Agreement is found to be illegal or unenforceable, then that part will be curtailed only to the extent necessary to make it, and the remainder of the General Terms and/or Sales Order as applicable, are legal and enforceable.

8.9 Governing Law. The Agreement and the rights and obligations of the Parties hereunder shall be governed, construed and interpreted solely and exclusively in accordance with the laws of the State of Wisconsin, without giving effect to any laws which would result in the application of the laws of another jurisdiction. 8.10 Attorney’s Fees. The prevailing Party in any action, claim or lawsuit brought pursuant to the General Terms and/or Sales Order is entitled to payment of all attorneys’ fees and costs expended by such prevailing Party in association with such action, claim or lawsuit.

8.11 Cooperation. In order for AEX to perform its obligations under the Agreement, Customer must provide AEX with full, good faith cooperation and access to such information as may be required by AEX including providing correct, accurate and complete data, office accommodations, facilities, equipment, and security access; personnel assistance as may be reasonably requested by AEX from time to time; cooperation with AEX, making decisions and communicating information in a timely manner. Customer acknowledges and agrees that AEX’ performance of any Services is both contingent and dependent upon such cooperation by Customer.

8.12 Force Majeure. Notwithstanding anything to the contrary herein, AEX shall not be deemed to be in default of any provision of the Agreement, or be liable to Customer or to any third party for any delay, error, failure in performance or interruption of performance due to any act of God, war, insurrection, acts of terrorism, riot, boycott, strikes, interruption of power service, interruption of Internet or communications service, labor or civil disturbance, acts of any other person not under the control of AEX or other similar causes (“Force Majeure Event”). AEX shall give Customer reasonable written notification of any material or indefinite delay due to such causes. 8.13 Headings. The titles or captions used in the Agreement are for convenience only and will not be used to construe or interpret any provision hereof.

8.14 Authority. Each person signing below represents and warrants that he or she has the necessary authority to bind the principal set forth below.

8.15 Compliance. Customer agrees to comply with all pertinent laws of the United States, including, but not limited to, the Securities and Exchange Act of 1933 and 1934, Trust Indenture Act of 1939, Investment Company Act of 1940, Securities Investor Protection Act of 1970 (SIPA), Sarbanes-Oxley Act of 2002, Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and any regulations and/or guidelines promulgated by the Securities and Exchange Commission, and the laws of the country in which Customer obtains the Subscription Services, in connection with its activities under the Agreement. Customer will comply with all applicable laws and regulations (including any applicable laws and regulations relating to financial and brokerage institutions. In the event Customer uses AEX Technology and/or the Subscription Services to obtain, store, process or in any manner transmit personal data of any person, Client covenants to fully comply with the data protection laws applicable in the State of California, the European Union or in any other U.S. States or countries regarding storage, processing and transfer of personal data.

8.16 International Terms. The United Nations Convention on Contracts for International Sale of Goods is hereby excluded. All prices are stated in and all payments shall be made in United States Dollars. The official text of the Agreement shall be the English language, and such English text shall be controlling in all respects, notwithstanding any translation hereof required under the laws or regulations of another country. All notices, requests, communications and proceedings under the Agreement shall be in the English language.

8.17 Entire Agreement. The Agreement constitutes the final written agreement and understanding of the Parties with respect to terms and conditions applicable to all Services including the Subscription Services and Customer’s use of AEX Technology. These General Terms shall supersede all other representations, agreements, proposals, and understandings, whether oral or written, which relate to the Services including the Subscription Services and customer’s use of AEX Technology and all matters within the scope of the Agreement. Without limiting the foregoing, the provisions related to confidentiality and exchange of information contained in the Agreement shall, with respect to the Services including the Subscription Services and Customer’s use of AEX Technology, supersede any separate non-disclosure agreement that is or may in the future be entered into by the Parties hereto. Any additional, supplementary, or conflicting terms supplied by the Customer, including those contained in purchase orders or confirmations issued by the Customer, are specifically and expressly rejected by AEX unless an authorized officer of AEX expressly agrees to them in a signed writing.

8.18 Counterparts. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. The Sales Order may be signed in any number of counterparts, each of which will be an original, with the same effect as if the signatures hereto were upon the same instrument.

Agreement Express Inc.’s

Information Security Guidelines

Updated: May 2019

Capitalized terms not otherwise defined herein shall have the meanings ascribed in the Agreement Express General Terms and Conditions.

1. Information Security Guidelines. Company shall have and adhere to commercially reasonable written information security guidelines for maintaining security controls and shall reasonably discuss such guidelines with Customer. Company’s information security guidelines shall include physical, administrative and technological controls. The controls should relate to the collection, maintenance (including access rights), transmittal and disposal of Personally Identifiable Information or “PII” (as defined below), and should include training, oversight, tests for vulnerabilities, checks of the systems and measures to prevent and detect unauthorized access. At a minimum, the information security guidelines shall include: (i) a written plan to assess and manage system failures; (ii) a regular assessment of data security risks and revision of guidelines to address identified risks; and (iii) notice and incident response procedures.

2. Further Protections. With respect to all employees, agents or third party contractors of Company who at any time have access rights to Personally Identifiable Information, Company agrees as follows: (i) to limit such access to only those employees, agents or third parties with a need for such access in order to perform Company’s obligations under this Agreement; (ii) prior to allowing any employee, agent or third party to have access to the Personally Identifiable Information, Company will advise (via training or other processes designed to acquaint such person with the security guidelines/programs instituted by Company) such employee, agent or third party of the confidential and sensitive nature of such information; and (iii) Company shall remain responsible for its compliance and the compliance of all its employees, agents and third parties with the obligations under this Agreement. Company also requires any of its employees with access to Personally Identifiable Information to undergo criminal and other background checks prior to allowing their access to Personally Identifiable Data.

3. Penetration Testing. At least twice each year during the Term of this Agreement, Company will require a reputable third party to conduct a penetration test of Company’s infrastructure designed to detect any material security weaknesses, including vulnerability scans related to such infrastructure. Company will use a reputable third party to conduct such testing that is certified by recognized industry standards as being qualified to perform penetration testing as contemplated by this Agreement. Company will reasonably discuss the results of such testing with Customer in a general nature so as not to expose any potential vulnerabilities to broader disclosure and, to the extent any such material weakness is found, will take appropriate action, promptly under the circumstances, to remedy such weakness.

4. Certification Report. Company will on an annual basis during the Term of this Agreement, at Customer’s written request, provide to Customer a copy of the most recent report or certification based upon Payment Card Industry Standards, SOC 2 Type II, or such other recognized industry certification or report on information security covering the data center used to host the Subscription Services (“Certification Report”). Company will not engage a third party to host data or Subscription Services such that Personally Identifiable Information is stored or maintained on such third party’s servers without requiring such third party to adhere to an annual certification on information security comparable to that described in this Section 4. For the avoidance of doubt, co-location facilities in which Company leases space, equipment and/or power supply from a third party, but Company maintains control over the use and access of the servers and computers, does not constitute a third party hosted server. With respect to Company’s and its Affiliate’s Subscription Services hosted on a third-party data center, the Certification Report will apply to the third-party data center used to host such Subscription Services and store the Personally Identifiable Information, and may be different from the Certification Report with respect to Company or its Affiliates themselves. Company may only provide Personally Identifiable Information to third parties who have a Certification Report.

5. Retention and Transmission. Company shall, upon the written request of Customer, encrypt any Personally Identifiable Information stored on its information systems and/or as transmitted by Company to Customer, but Company may only provide Personally Identifiable Information to third party contractors who either i) have Certification Report; or ii) are in compliance with Section 2 above.

6. Notification. Company shall notify Customer promptly under the circumstances, however in no event earlier than the latest of the following: (i) as required by law; or (ii) two (2) business days after discovering such event; or (iii) the date law enforcement officials, if involved in investigating the event, authorize such notification, of any unauthorized access or acquisition of Personally Identifiable Information or misuse or a reasonable belief of misuse of Personally Identifiable Information, by an unauthorized third party. This notification will state in reasonable detail the Personally Identifiable Information at risk, and each Party agrees to take all actions reasonable under the circumstances necessary to immediately prevent the continued unauthorized access of such information. Company further agrees that, in the event of an unauthorized access to Personally Identifiable Information, it will work in good faith and cooperate with Customer to address the breach, including an investigation of the unauthorized access in a manner mutually agreed by the Parties.

7. Personally Identifiable Information. For purposes of this Agreement, “Personally Identifiable Information” shall mean any of the following unencrypted information, alone or in combination: i) a person’s first name or initial and last name; ii) credit and debit card numbers; (iii) personal financial and/or tax information; (iv) home address; (v) Social Security Number (US) or Social Insurance Number (Canada); (vi) family or relatives names; (vii) bank or brokerage account information including account numbers; (viii) e-mail address and IP Address or or unecnrypted data provided by Customer that may allow identification of any of the foregoing. The term does not include publicly available information that is lawfully made available to the general public from federal or state or provincial Canadian government records, or obtained by Company independent of the customer.

Agreement Express

Agreement Express Inc.’s General Terms and Conditions (“General Terms”)

Updated: March 2021

Capitalized terms used in these General Terms shall have the following meanings:

“AEX” means Agreement Express Inc.

“AEX Content” means all Content made available by AEX to Customer in connection with Customer’s use of the Subscription Service.

“Agreement” means these General Terms, the Sales Order, SOW(s) (each including all exhibits, schedules and other attachments) and the Information Security Guidelines.

“Party” means either AEX or Customer individually and “Parties” refers to AEX and Customer collectively. “Person” means any individual or legal entity.

“Professional Services” means those installation, set-up, integration, configuration, consulting, and/or training services to be provided by AEX as may be specified in an applicable SOW.

“Subscription Service” means the services offered through the AEX Platform provided by AEX as described in, and pursuant to, a Sales Order, for the benefit of Customer.

1. SERVICES

1.1 Services. AEX shall provide Customer with the applicable AEX Services as specified on a Sales Order and/or SOW.

2. FEES; PAYMENT TERMS

2.1 Fees. All fees and charges will be set forth in the applicable Sales Order.

3. CONFIDENTIALITY

4. LIMITED WARRANTY

4.2 Subscription Services Warranties. All warranties applicable to the Subscription Services will be set forth in the applicable Sales Order.

4.3 Professional Services Warranties. All warranties applicable to the Professional Services will be set forth in the applicable SOW.

5. INDEMNIFICATION AND INSURANCE

a. Statutory worker’s compensation in accordance with applicable state laws.

b. Employer’s liability insurance in an amount of not less than $1,000,000 each accident, each employee and policy limit.

d. Professional Liability – “Tech Risk” errors and omissions insurance in an amount of not less than a $5,000,000 aggregate limit.

e. Commercial Crime in a total combined limit of primary and excess coverage, any one occurrence of not less than fifty thousand Dollars ($50,000);

f. Automotive liability covering all vehicles non-owned or hired and leased with a combined single limit for bodily injury and property damage of not less than $1,000,000.

6. LIMITATION OF LIABILITY.

7. TERM

8. PROVISIONS OF GENERAL APPLICABILITY

8.14 Authority. Each person signing below represents and warrants that he or she has the necessary authority to bind the principal set forth below.

Agreement Express Inc.’s

Information Security Guidelines

Updated: May 2019

Capitalized terms not otherwise defined herein shall have the meanings ascribed in the Agreement Express General Terms and Conditions.

Data Processing Addendum

This Data Processing Addendum (“Addendum”) supplements the Agreement entered into by and between NMI and Company. Any terms not defined in this Addendum will have the meaning set forth in the Agreement. To the extent NMI receives Personal Data from Company, the terms of this Addendum will apply to the parties.

1. Definitions

1.1 “Affiliate” means any person or entity that controls, is controlled by, or is under common control with, such party.

1.2 “Applicable Laws ” means any applicable laws, rules, and regulations in any relevant jurisdiction applicable to the Addendum, the Agreement, or the use or Processing of Personal Data, including those concerning privacy, data protection, confidentiality, information security, availability and integrity, or the handling of Personal Data. Applicable Laws expressly include, as applicable: (i) the California Consumer Privacy Act (and its successor/amending statute the California Privacy Rights Act)(the “CPRA”; (ii) the Virginia Consumer Data Protection Act (the “VCDPA”); (iii) the Colorado Privacy Act (the “”CPA”); (iv) the General Data Protection Regulation (Regulation (EU) 2016/679) (“EU GDPR” or “GDPR”), (v) the EU GDPR as it forms part of the law of England and Wales by virtue of Section 3 of the European Union (Withdrawal) Act 2018 (the “UK GDPR”); (vi) the UK Data Protection Act 2018; and (vii) the Privacy and Electronic Communications (EC Directive) Regulations 2003, in each case, as updated, amended or replaced from time to time.

1.3 “Authorized Person” means an employee of either Party or an employee of a Party’s Affiliate who has a need to know or otherwise access Personal Data to enable a Party to perform its obligations under this Addendum or the Agreement and who has been apprised of the confidential nature of Personal Data before they may access such data and who has undergone appropriate background screening and training.

1.4 “Business or Data Controller” means the Company which alone determines the purposes and means of the Processing of Personal Data

1.5 “Consumer or Data Subject” means a natural person about whom a Data Controller holds Personal Data pursuant to the Agreement and who can be identified, directly or indirectly, by reference to that Personal Data.

1.6 “Consumer Rights or Data Subject Rights” means the rights recognized and granted to Data Subjects with respect to their Personal Data under Applicable Laws

1.7 “EU SCCs” means the standard contractual clauses approved by the European Commission in Commission Decision 2021/914 dated 4 June 2021, for transfers of Personal Data to countries not otherwise recognized as offering an adequate level of protection for Personal Data by the European Commission; available at: https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/standard-contractual-clauses-scc_en (as amended and updated from time to time).

1.8 “ex-EEA Transfer” means the transfer of Personal Data, which is Processed in accordance with the GDPR, outside the European Economic Area (the “EEA”), and such transfer is not governed by an adequacy decision made by the European Commission in accordance with the relevant provisions of the GDPR.

1.9 “ex-UK Transfer” means the transfer of Personal Data, which is Processed in accordance with the UK GDPR and the Data Protection Act 2018, outside the United Kingdom (the “UK”), and such transfer is not governed by an adequacy decision made by the Secretary of State in the UK in accordance with the relevant provisions of the UK GDPR and the Data Protection Act 2018.

1.10 “Personal Data” means any information relating to an identified or identifiable living individual that is transmitted, uploaded, created, processed or stored by NMI as part of the provision of the Services provided by NMI under the Agreement. An identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual. Tokenized data or encrypted data that NMI cannot reidentify is not considered Personal Data.

1.11 “Personal Data Breach” means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data other than (a) through the use of a Company’s or any Users’ generated password that, consistent with the settings and permissions in the respective Service, has rights to access such Personal Data, or (b) access by NMI personnel or Subprocessor personnel whose access to or use of such Personal Data is for the purpose of performance of the Services as permitted under this Agreement and Applicable Law.

1.12 “Process or Processing” means any operation or set of operations performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

1.13 “Service Provider or Data Processor or Processor” means NMI, which Processes Personal Data on behalf of and pursuant to the instructions of Company.

1.14 “Services” shall have the meaning set forth in the Agreement.

1.15 “Sensitive Personal Data” means data that is also Personal Data but includes a subsect of Personal Data that constitutes: “sensitive personal information,” “sensitive data,” or any similar category of information subject to Applicable Laws.

1.16 “Subprocessor” means any third party appointed by or on behalf of NMI to process Personal Data. A Subprocessor may also be referred to as a Third-Party Service Provider.

1.17 “UK Data Transfer Addendum” means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses Version B1.0, in force 21 March 2022 issued by the UK Information Commissioner under S119A(1) Data Protection Act 2018, available at International data transfer agreement and guidance page

2. Processing of Data and Compliance with Applicable Laws

2.1 The Parties shall comply with this Addendum at all times during the term of the Agreement and for any period post termination where the Parties process Personal Data in accordance with the Agreement. Any failure by either party to comply with the obligations set forth in this Addendum will be considered a material breach of the Agreement, and the other party will have the right, without limiting any of the rights or remedies under this Addendum or the Agreement, or at law or in equity, to immediately terminate the Agreement for cause.

2.2 The rights and obligations of NMI with respect to Processing are described herein and in the Agreement. The subject matter, nature, purpose and duration of this Processing, as well as the types of Personal Data collected and categories of Data Subjects involved, are described in Exhibit 1 to this Addendum.

2.3 NMI shall only Process Personal Data for the limited and specified purposes described in Exhibit 1, the terms set forth in this Addendum and in any written instructions provided by Company.

2.4 Company represents and warrants that it will: (i) comply with all Applicable Laws; (ii) any written instructions it provides to NMI will comply with all Applicable Laws; and (iii) shall make the required disclosures and obtain the necessary consents for NMI to process Personal Data. Company shall notify NMI if an instruction it gave NMI violates Applicable Laws.

2.5 If Company cannot comply with Applicable Laws in the performance of its obligations to NMI, Company agrees to promptly inform NMI in writing of its inability to comply, in which case NMI may (at its discretion) suspend the processing of Personal Data, terminate the Agreement, or otherwise stop processing Personal Data and remediate any issues that arise as a result of Company’s failure to comply with Applicable Laws.

2.6 NMI acknowledges and confirms that it does not receive any Personal Data from Company as consideration for any services or other items provided to Company. Except as expressly set forth in the Agreement, NMI shall not have, derive or exercise any rights or benefits regarding data provided by Company (“Consumer Data”) and NMI shall not sell any Consumer Data, as defined by Applicable Laws. NMI shall not retain, use or disclose any Consumer Data except as necessary for the specific purpose of performing the Services for Company pursuant to the Agreement, for the benefit of the Company (such as, but not limited to, providing insight information or to offer the Company additional products or services), or otherwise for its internal business purposes. Company agrees that NMI may anonymise Consumer Data to use for its internal business purposes and to develop its products and services. NMI understands the rules, restrictions, requirements and definitions of the CPRA and agrees to refrain from taking any action that would cause any transfers of Consumer Data to or from NMI to qualify as a sale of personal information under the CPRA. The terms “personal information,” “sale,” and “sell” for the purposes of this Section 8 are as defined in Section 1798.140 of the California Consumer Protection Act (“CCPA”).

2.7 Company hereby instructs NMI to transfer Personal Data to any country or territory as reasonably necessary for the provision of the Services and consistent with this Addendum.

2.8 NMI will hereby assist Company in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the EU GDPR/UK GDPR, taking into account the nature of the processing and the information available to NMI.

3. Security of Personal Data.

3.1 NMI shall in relation to the Personal Data implement the Security Requirements attached hereto as Exhibit 3 and any additional measures required pursuant to Applicable Laws.

3.2 After termination or expiry of the Agreement, upon Company’s written request , , NMI shall, and shall ensure that all Authorized Persons, promptly and securely dispose of or return to Company , at Company’s choice, all copies of Personal Data, unless NMI is otherwise required to retain the Personal Data in accordance with Applicable Law.

3.3 Where and to the extent disposal of Personal Data in accordance with Section 3.2 is explicitly prevented by Applicable Law(s) or technically infeasible, NMI or Authorized Persons, as applicable, shall (i) take measures to block such Personal Data from any further Processing (except to the extent necessary for continued Processing explicitly required by Applicable Law(s)), and (ii) continue to exercise appropriate Technical and Organizational Security Measures to protect such Personal Data until it may be disposed of in accordance with Section 3.2.

4. Subprocessing and Authorized Personnel

4.1 NMI shall take reasonable steps to ensure that access to Personal Data is limited to those individuals who need to know/access the Personal Data to provide the Services, and (ii) ensure that all individuals it authorizes to process Personal Data are bound by confidentiality obligations (whether by contract or under Applicable Law) in respect of the processing of Personal Data.

4.2 Company acknowledges that NMI may engage Subprocessors in connection with providing the Services. Company consents to NMI’s use of Subprocessors subject to compliance with the terms in this Section 4. A copy of the list of Subprocessors who are involved in processing of Personal Data can be found here NMI has entered, and for new Subprocessors will enter, into a written agreement with each Subprocessor that complies with the relevant Applicable Laws applicable to the Subprocessor or the processing.

4.3 NMI will notify Company (for which email shall suffice) if NMI intends to add additional Subprocessors to the above mentioned list, at least fourteen (14) days before the changes come into effect.

4.4 Company may reasonably object to NMI’s use of a new Subprocessor by notifying NMI promptly in writing within fourteen (14) days after receipt of NMI’s notice. If Company reasonably objects to a new Subprocessor and NMI does not resolve Company’s reasonable objection within a reasonable period of time not to exceed fourteen (14) days, either Party may terminate the portion of the Agreement relating to the Services involving the new Subprocessor (which may involve termination of the entire Agreement) by providing written otice to the other Party. Termination under this Section 4.4 will be without fault to either party.

4.5 Each party shall remain responsible and liable for its compliance with Applicable Laws and any obligations ensuing from the Agreement and this Addendum.

5. Personal Data Breach

5.1 NMI shall notify Company of a Personal Data Breach as soon as reasonably practicable, but in any event, not more than forty-eight (48) hours after confirming such Personal Data Breach.

5.2 In the event of a Personal Data Breach, NMI will provide Company with such details as Company reasonably requires (to the extent that such information is known or available to NMI) regarding: (i) the nature of the Personal Data breach, including the categories and approximate numbers of data subjects and Personal Data records concerned; (ii) any investigations into such Personal Data Breach; (iii) the likely consequences of the Personal Data Breach; and (iv) any measures taken, or that NMI recommends, to address the Personal Data Breach, including to mitigate its possible adverse effects and prevent the re-occurrence of the Personal Data Breach.

5.3 NMI may give Company phased updates as additional information regarding the Personal Data Breach becomes available to NMI; and provide reasonable cooperation and assistance to Company in relation to any remedial action to be taken in response to a Personal Data Breach, but will not notify any data subjects of the Personal Data Breach, except pursuant to the Company’s explicit instruction or as required by any law, rule, regulation or binding court order to which NMI is subject.

5.4 Company may share any notification and details provided by NMI under this Section 5 with the appropriate governmental/supervisory authority if required to do so under Applicable Laws.

6. Transfers of Personal Data

6.1 If NMI transfers Personal Data protected under this Addendum to a jurisdiction for which the United Kingdom or European Commission (as applicable) has not issued an adequacy decision (each, (“Restricted Transfer”)), NMI shall ensure that (i) a Restricted Transfer by NMI may only be made to Subprocessors as approved by Company in accordance with Section 4 of this Addendum; (ii) any Restricted Transfer conducted by NMI or any Authorized Person shall be undertaken in accordance with the appropriate Standard Contractual Clauses entered into in accordance with Applicable Law (as applicable); and (iii) that each Restricted Transfer will be made after appropriate safeguards have been implemented for the Restricted Transfer of Personal Data in accordance with Applicable Laws.

6.2 Ex-EEA Transfers. If applicable, Ex-EEA Transfers are made pursuant to the EU SCCs, which are deemed entered into and incorporated into this Addendum by reference. For the purposes of the EU SCCs, the appropriate module shall be:

(i)Module Two (Controller to Processor), where the Company engages with NMI as a Merchant, with the following options:

a. Clause 7 (Docking Clause) shall apply; b. In Clause 9 (use of sub-processors) option 2 (general written authorisation) shall apply and the time period shall be that specified in clause 4.2 of this Agreement. c. In Clause 11, the optional language does not apply; d. All square brackets in Clause 13 are hereby removed; e. In Clause 17 (Option 1), the EU SCCs will be governed by the laws of the Republic of Ireland; f. In Clause 18(b), disputes will be resolved before the courts of the Republic of Ireland; g. Exhibit 2 to this Addendum contains the information required in Annex I of the EU SCCs; h. Exhibit 3 to this Addendum contains the information required in Annex II of the EU SCCs; and i. By entering into this Addendum, the parties are deemed to have signed the EU SCCs incorporated herein, including its Annexes.

(ii) Module Three (Processor to Processor), where the Company engages with NMI as a Reseller acting on behalf of a Merchant(s) as controller of the Personal Data, with the following options: a. Clause 7 (Docking Clause) shall apply; b. In Clause 9 (use of sub-processors) option 2 (general written authorisation) shall apply and the time period shall be that specified in clause 4.2 of this Agreement. c. In Clause 11, the optional language does not apply; d. All square brackets in Clause 13 are hereby removed; e. In Clause 17 (Option 1), the EU SCCs will be governed by the laws of the Republic of Ireland; f. In Clause 18(b), disputes will be resolved before the courts of the Republic of Ireland; g. Exhibit 2 to this Addendum contains the information required in Annex I of the EU SCCs; h. Exhibit 3 to this Addendum contains the information required in Annex II of the EU SCCs; and i. By entering into this Addendum, the parties are deemed to have signed the EU SCCs incorporated herein, including its Annexes.

6.3 Ex-UK Transfers. If applicable, Ex-UK Transfers are made pursuant to the UK Data Transfer Addendum, which is deemed entered into and incorporated into this Addendum by reference. For the UK Data Transfer Addendum, where applicable the following applies:
(i) Exhibit 4 to this Addendum contains the information required in Part 1 – Tables, of the UK Data Transfer Addendum; and
(ii) By entering into this Addendum, the parties are deemed to have signed the UK Data Transfer Addendum incorporated herein.

7. Rights of Data Subjects.

NMI will provide such assistance as is reasonably required to enable Company to comply with Data Subject Rights requests within the time limits imposed by Applicable Laws.

8. Recordkeeping.

8.1 Recordkeeping. NMI shall maintain records and information in accordance with Applicable Laws to demonstrate its compliance with this Addendum (“Records”).
8.2 Verification Requirements. On reasonable written request, no more than once per calendar year; or in response to an actual security breach involving Personal Information originating from Company, NMI shall make available to Company all Records necessary to demonstrate compliance with the Applicable Laws. NMI reserves the right to charge reasonable expenses for any additional requests by Company.

9. Miscellaneous

9.1 NMI may modify or amend this Addendum ma to ensure that it complies with Applicable Laws, providing that it gives the Company reasonable written notice of such changes. Both parties may disclose this Addendum to third parties (including other businesses, Consumers and regulators) for purposes of demonstrating compliance with Applicable Laws.
9.2 If an amendment to this Addendum is required to comply with Applicable Laws, both parties shall work together in good faith to promptly execute a mutually agreeable amendment.
9.3 If any individual provisions of this Addendum are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this Addendum shall not be affected.
9.4 This Addendum may be executed in one or more counterparts, each of which shall be deemed to be an original executed copy of the Addendum.
9.5 Addendum shall automatically terminate upon the termination or expiration of the Agreements under which the Services are provided, but the provisions of this Addendum shall survive beyond termination where NMI is required to process Personal Data after termination or expiry of the Agreement, and in such case the provisions shall continue to apply to the extent that NMI processes the Personal Data.
9.6 In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) Applicable Laws; (2) the terms of this Addendum; and (3) the Agreement.
9.7 Notwithstanding anything contrary to this Addendum or Agreement between the parties, NMI will not be liable to any Data Subject for a claim arising from NMI’s acts or omissions, to the extent that NMI was acting in line with Company’s written instruction and consent.

Exhibit 1

Details of Processing

Nature and Purpose of Processing: Each Party will Process Company’s Personal Data as necessary to provide the Services under the Agreement, for the purposes specified in the Agreement, the Data Processing Addendum, and in accordance with Company’s instructions as set forth in this Exhibit 1. The nature of Processing shall include:

The Parties will process Personal Data as necessary to fulfil the Party’s obligations under the Agreement and as otherwise set forth in this Addendum

Duration of Processing:

The term of the Agreement.

Categories of Data Subjects: Categories of data subjects whose personal data is transferred include:

the end-users of a the Company or its customers (as applicable) who’s payment information is processed through the Services in accordance with the Agreement

Categories of Personal Data:

General Personal Data

Cardholder data (including but not limited to cardholder name, expiration date, account numbers, service codes)
Bank account details
Contact information (including but not limited to name, email, mobile number, address, email address)
IP address/ location
Tax ID

Special categories of data / Sensitive Personal Data

None

Exhibit 2

This Exhibit 2 shall apply in accordance with clause 6.2, where applicable.

A LIST OF PARTIES

For transfers of EU Personal Data :

Data exporter(s):

Name:	Company
Address:	As specified in the Order Form
Contact person’s name, position and contact details:
As specified in the Order Form
Activities relevant to the data transferred under these Clauses: The data importer provides services to the data exporter in accordance with the Agreement.
Role:	controller

Data importer(s):

Name:	NMI
Address:	As specified in the Order Form
Contact person’s name, position and contact details:
As specified in the Order Form
Activities relevant to the data transferred under these Clauses: The data importer provides services to the data exporter in accordance with the Agreement.
Role:	processor

DESCRIPTION OF TRANSFER

Categories of data subjects whose Personal Data is transferred:

As described in Exhibit 1

Categories of Personal Data transferred

As described in Exhibit 1.

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

Continuous, for any period that the data importer provides Services under this Agreement.

Nature of the processing

As described in Exhibit 1

Purpose(s) of the data transfer and further processing

As described in Exhibit 1

The period for which the Personal Data will be retained, or, if that is not possible, the criteria used to determine that period

As described in Exhibit 1

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

As described in Section D below.

COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13.

For transfers of EU Personal Data:

Name:	Data Protection Commission, Ireland
Address:	21 Fitzwilliam Square South Dublin 2 D02 RD28 Ireland

For transfers of UK Personal Data:

Name:	UK Information Commissioner’s Office
Address:	Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF

LIST OF SUB-PROCESSORS

The controller has authorized the use of the following sub-processors: As detailed in clause 4.2 of this Data Processing Addendum.

Exhibit 3

Description of the Technical and Organizational Security Measures implemented by the NMI

NMI maintains the following administrative, physical and technical safeguards (“Security Requirements”) for the protection of Personal Data, as described in Section 3 of the Addendum and outlined here.

Exhibit 4 UK Addendum (as applicable)

For transfers of Personal Data from Company to NMI which are subject to the UK GDPR (as amended or replaced from time to time), the parties agree to be bound by the terms of the UK Addendum, which shall be completed and entered into as follows:

Part 1:

Table 1: Parties: As set out in the EU SCCs contained in Exhibit 2 of this Addendum.

Table 2: Selected SCCs, Modules and Selected Clauses:

Addendum EU SCCs

The version of the Approved EU SCCs as specified in clause 6.2 of this Agreement and to which this Addendum is appended to.

Table 3: Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:

Annex 1A: List of Parties: As set forth in Annex 1A of the EU SCCs.

Annex 1B: Description of Transfer: As set forth in Annex 1B of the EU SCCs.

Annex II: Technical and organizational measures including technical and organizational measures to ensure the security of the data: As set forth in Annex II of the EU SCCs.

Annex III: List of Sub processors (Modules 2 and 3 only): As set forth in Annex 3 to the EU SCCs.

Table 4: Ending this Addendum when the Approved Addendum Changes

Ending this Addendum when the Approved Addendum changes

Which Parties may end this Addendum as set out in Clause 19 of this Exhibit:

[X] Importer

[X] Exporter

☐ neither Party

Part 2: Mandatory Clauses

Entering into this Addendum

1. Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.

2. Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.

Interpretation of this Addendum

3. Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

Addendum	This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs.
Addendum EU SCCs	The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information.
Appendix Information	As set out in Table ‎3.
Appropriate Safeguards	The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR.
Approved Addendum	The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 .
Approved EU SCCs	The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
ICO	The Information Commissioner.
Restricted Transfer	A transfer which is covered by Chapter V of the UK GDPR.
UK	The United Kingdom of Great Britain and Northern Ireland.
UK Data Protection Laws	All laws relating to data protection, the processing of personal data, privacy and/or electronic communications, in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.
UK GDPR	As defined in section 3 of the Data Protection Act 2018.

4. This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.
5. If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.
6. If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
7. If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
8. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.

Hierarchy

9. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
10. Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
11. Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

12. This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that: a. together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers; b. Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and c. this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.
13. Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
14. No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
15. The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made: a. References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs; b. In Clause 2, delete the words:

“and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;

c. Clause 6 (Description of the transfer(s)) is replaced with:

“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;

d. Clause 8.7(i) of Module 1 is replaced with:

“it is to a country benefiting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;

e. Clause 8.8(i) of Modules 2 and 3 is replaced with:

“the onward transfer is to a country benefiting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”

f. References to “Regulation (EU) 2016/679”, “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws; g. References to Regulation (EU) 2018/1725 are removed; h. References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”; i. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”; j. Clause 13(a) and Part C of Annex I are not used; k. The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”; l. In Clause 16(e), subsection (i) is replaced with:

“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;

m. Clause 17 is replaced with:

“These Clauses are governed by the laws of England and Wales.”;

n. Clause 18 is replaced with:

“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and

o. The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.

Amendments to this Addendum

16. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
17. If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
18. From time to time, the ICO may issue a revised Approved Addendum which: a. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or b. reflects changes to UK Data Protection Laws;

The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.

19. If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in: a. its direct costs of performing its obligations under the Addendum; and/or b. its risk under the Addendum,

and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.

20. The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.

Alternative Part 2 Mandatory Clauses:

Mandatory Clauses

Part 2: Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section ‎18 of those Mandatory Clauses.

White Label Template for Partner/Merchant Terms

PAYMENT GATEWAY MERCHANT SERVICE AGREEMENT

[Insert Partner entity name] (“Payment Gateway“) offers merchants various products and services relating to payment processing directly through Payment Gateway and through Third Party Service Providers (defined below).

In order for you, the person or entity identified on the applicable merchant application (“Merchant“, “You” or “Your“) , to use the payment processing services, payment gateway services and other products and services, as such descriptions may be changed from time to time by Payment Gateway (“Payment Gateway Services“), you must agree to and accept the terms and conditions of this agreement (“Agreement“).

Please read this Agreement carefully. You understand that by using any of the Payment Gateway Services, by clicking on the “I AGREE TO ALL TERMS ABOVE” button (or similar button captioned with acceptance language) and/or signing this Agreement, you represent and warrant that you (i) have the authority to bind your company to the terms of this Agreement; (ii) have reviewed and understand the Agreement, and (iii) agree, on behalf of your company, to be legally bound by all terms and conditions of the Agreement (including the terms and conditions stated on web pages incorporated by reference in this Agreement).

If you do not agree or are not willing to be bound by the terms and conditions of this Agreement, do not click on the “I AGREE TO ALL TERMS ABOVE” or similarly captioned button and do not use any of the Payment Gateway Services.

NOW THEREFORE, the parties agree as follows:

1. DEFINITIONS:

“Account” means an account portal established for You by Payment Gateway, and accessed by You (or by Payment Gateway on Your behalf) through an API or integration or online portal to utilize the Payment Gateway Services.

“Acquiring Bank” means the financial institution supplying You with the ability to accept credit and debit cards for payments. The financial institution will charge You fees for providing these services.

“ACH” means Automated Clearing House, which is an electronic network that allows the exchange and settlement of electronic payments between financial institutions.

“Card Association” means any network or association associated with processing Payment Cards of a specific brand, including but not limited to American Express Company, Discover Financial Services, JCB Co., Ltd., Mastercard Incorporated, Visa Inc., the National Automated Clearing House Association (NACHA), or any debit network, and each of their subsidiaries and successors.

“Confidential Information” means any information, data, trade secrets, know-how, provided or disclosed directly, or indirectly, in writing or orally, either designated as proprietary and/or confidential or that, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential, products, product plans, services, services documentation (in whatever form or media provided) customers, customer lists, user data, revenue, markets, software developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration, marketing, marketing materials, financial or other business information, or the financial terms of this Agreement. Data, as defined in this Agreement, are deemed Confidential Information.

“Data” has the meaning set forth in Section 5 (DATA SECURITY, COLLECTION, TRANSFER AND RETENTION; CREDENTIALS).

“Effective Date” means the earlier of the date You use the Payment Gateway Services or acknowledge Your acceptance of the Agreement by any method, including without limitation execution of Your merchant application that incorporates the Agreement by reference.

“Value Added Solution(s)” means additional services offered to you within the Payment Gateway Services platform now or in the future.

“Value Added Solutions Reseller” means any Third Party Service Provider that adds to, enhances or modifies existing hardware or software, adding value to the Payment Gateway Services.

“Fee Schedule” means a list of fees and charges that is provided to you by Payment Gateway.

“Payment Cards” means Visa, Mastercard, Discover, Amex, and any other Card Association debit or credit card that You and Payment Gateway mutually agree to participate in.

“PCI DSS” means Payment Card Industry Data Security Standard.

“Privacy Policy” means the then current Payment Gateway’s Privacy Policy either available at its website or otherwise provided, which may be modified by Payment Gateway in its sole discretion.

“Return Payment Fee” is a fee charged to You by Payment Gateway on each occurrence when Payment Gateway is unable to collect fees on Your Account for any reason, including but not limited to insufficient funds, closed account, or any other negative response.

“Rules” means the rules, requirements, policies, procedures, and standards issued by the Card Associations or other industry bodies such as the PCI Security Standards Council LLC, including without limitation the Payment Card Industry Data Security Standard (PCI DSS) and the PCI Software Security Framework, or any successor or replacement framework or standard implemented by the PCI Security Standards Council, as each may be amended from time to time by the Card Associations or other applicable authorities.

“Third Party Service Provider” means a third party entity that maintains aspects of the Payment Gateway Services or provides certain bank and/or merchant payment services including but not limited to billing, reporting, customer service, authorization, and settlement services.

“Trademark(s)” means all common law or registered trademarks, service marks, trade names and trade dress rights and/or similar or related rights under any laws of any country or jurisdiction, including but not limited to the United States of America whether existing now or hereafter adopted.

“Transaction(s)” means any billable occurrence completed or submitted under Your Account including but not limited to sale, void, refund, credit, offline force, capture, authorization, validate, update or settlement regardless of whether approved or declined.

2. TERM

The term of the Agreement shall commence on the Effective Date and shall remain in full force and effect until terminated pursuant to Section 10 (TERMINATION) (“Term“).

3. LEGAL

By accepting the terms and conditions of this Agreement, You represent and warrant that (i) all information You have provided and will provide to Payment Gateway is true and correct in all respects, and (ii) You will promptly update Payment Gateway in writing with any changes to information You have previously supplied. Payment Gateway reserves its right to refuse to provide You with any Payment Gateway Service and terminate this Agreement, with or without notice, if Payment Gateway reasonably believes, in its sole discretion, that You have supplied any information which is misleading, untrue, inaccurate, fraudulent, or incomplete.

4. USE OF PAYMENT GATEWAY SERVICES

4.1 Payment Gateway Services Grant

(a) You are granted a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to use the Payment Gateway Services during the Term so long as You are in compliance with (i) this Agreement, including being current in paying all applicable fees as referenced in Section 8 (PAYMENT TERMS) and Section 9 (FEES), and (ii) the current policies, procedures, guidelines and restrictions contained in this Agreement and policies, procedures, guidelines and restrictions communicated to You by Payment Gateway, all of which may be amended by Payment Gateway from time to time. Payment Gateway shall, directly or through its Third Party Service Providers, provide the Payment Gateway Services to You in accordance with this Agreement and the rights granted to You under this Agreement are for the purposes contained in this Agreement and for no other purpose.

(b) Your use of the Payment Gateway Services shall be restricted to You. You shall not submit Data to Payment Gateway or otherwise process orders on behalf of any other entity or individual not permitted under this Agreement. Any attempt by You to use the Payment Gateway Services on behalf of another entity or individual in breach of this Agreement may result in Your obligation to pay to Payment Gateway additional fees and charges and/or Payment Gateway may revoke Your right to access or use the Payment Gateway Services and terminate this Agreement.

(c) In addition to Your compliance with this Agreement, You will comply, at Your own expense, with all Rules, applicable laws, regulations, rules, ordinances and orders of governmental authorities. You may not request, introduce, or process Transactions using the Payment Gateway Services on behalf of any other person or entity, and shall not use the Payment Gateway Services in any other prohibited manner, including those set forth in Appendix B and set forth in the Rules or in furtherance of any activity that may cause Payment Gateway to be subject to investigation, prosecution, or legal action.

(d) If you have elected to receive any Value Added Solutions in connection with the Payment Gateway Services, then, in addition to the other terms of this Agreement, the terms and conditions set forth in Appendix A will govern Your access to and use of the Value Added Solutions, which terms and conditions are incorporated by reference in to this Agreement, as may be amended or updated from time to time. Payment Gateway must approve of Your enrollment in any Value Added Solutions. The Value Added Solutions may be provided by Payment Gateway or a Third Party Service Provider as indicated upon Your enrollment. Your election to receive certain Value Added Solutions may require You to enter into a direct agreement with the respective Third Party Service Provider. If the pricing of any Value Added Solutions is not set forth on the Fee Schedule, such Value Added Solutions may be subject to separate pricing schedules which will be provided to You in connection with Your registration for such Value Added Solution.

4.2 Data License Grant

(a) You grant Payment Gateway a royalty-free, non-exclusive license (with right to sublicense) to use Data, materials, and other intellectual property as necessary or useful for Payment Gateway to provide the Payment Gateway Services to You and to otherwise perform Payment Gateway’s obligations under this Agreement. Payment Gateway may collect and hold Data from and about You and Your customers for the purpose of providing the Payment Gateway Services or to consider Your eligibility for the Payment Gateway Services as part of Your merchant application process. You understand and agree that such Data may be shared with and used by certain third parties (including without limitation Third Party Service Providers, government agencies, or courts). Additionally, you understand that such Data may be shared with Payment Gateway by such certain third parties and You authorize Payment Gateway to receive Your or Your customer’s Data from such third parties.

4.3 Support of Payment Gateway Services

(a) Regardless of whether the Payment Gateway Services or any Value Added Solutions are provided by Payment Gateway directly or through a Third Party Service Provider or Value Added Solutions Reseller, You and Payment Gateway agree that Payment Gateway (and not the Third Party Service Provider or Value Added Solutions Reseller) will provide first line support to You and Your customers on issues relating to Your and Your customers’ use of the Payment Gateway Services. You acknowledge and agree that You will look to Payment Gateway for all support, including for any Payment Gateway Services provided by a Third Party Service Provider, Value Added Solutions Reseller, or any additional supplier, agent, vendor, contractor or third party providing any part of the Payment Gateway Services.

5. DATA SECURITY, COLLECTION, TRANSFER AND RETENTION; CREDENTIALS

5.1 Use and Sharing of Your Data

(a) Payment Gateway will collect, retain, use and share information and Data (defined below) collected from You and Your customers, and Payment Gateway will share such information and Data with its Third Party Service Providers, in accordance with Payment Gateway’s then current Privacy Policies. You consent, to the collection, use, processing and transfer of Data, and the sharing of Data with Third Party Service Providers and other third party vendors, agents, and suppliers, as described in this Section 5 (DATA SECURITY, COLLECTION, TRANSFER AND RETENTION; CREDENTIALS) and pursuant to Payment Gateway’s Privacy Policy. You agree to monitor Payment Gateway’s Privacy Policy periodically to review any possible amendments. By using the Payment Gateway Services after modifications to Payment Gateway’s Privacy Policy, You have agreed to such amendments.

(b) Payment Gateway may collect, use, share, and hold personal or non-public information about You and Your customers, including but not limited to: Your name, address, telephone number, email address, social security number and/or tax identification number and payment data, Transaction data, including account numbers and purchase history as well as Your customers’ names, mailing & shipping addresses, email addresses, phone number, types of purchases and descriptions of purchases, and various Transaction data related to Your customers (“Data“) for the purpose of considering eligibility for the Payment Gateway Services and for the purpose of providing You and Your customers with the Payment Gateway Services. Payment Gateway shall have the right to (i) use the Data as necessary to perform the Payment Gateway Services (including distributing the Data to its Third Party Service Providers and other third parties, as requested by You and as necessary to perform the Payment Gateway Service); (ii) maintain the Data as long as necessary or as required by law and used internally for record keeping, internal reporting, and support purposes; (iii) compile and disclose Data in the aggregate where the Data is not identifiable, including without limitation, calculating merchant averages by region or industry; and (iv) provide the Data as required by Rules, law or court order, or to defend Payment Gateway’s rights in a legal dispute. Payment Gateway, its subsidiaries, Third Party Service Providers, suppliers and/or their agents and/or contractors may have access to, use, and transfer such Data among themselves as necessary for the purpose of the provision and management of the Payment Gateway Services. Payment Gateway may further transfer Data (a) with non-affiliated entities that assist Payment Gateway in providing products and services that You have requested; (b) with companies that provide support services to Payment Gateway; (c) with companies that provide marketing services on behalf of Payment Gateway; or (d) as otherwise provided by law.

(c) In evaluating Your eligibility for, provision of, administration and management of the Payment Gateway Services, as well as under circumstances described in the Privacy Policy that may be changed from time to time, Payment Gateway may obtain various consumer reports regarding You or Beneficial Owners associated with You from third parties, run a credit check or obtain other personal or credit information about You or Your Beneficial Owners (defined below in this Section 5.1 (c)). Pursuant to such, Payment Gateway may, from time to time, obtain consumer-identifying and credit information (including credit reports) and other consumer reports from multiple consumer reporting agencies for any individual required by Payment Gateway or Beneficial Owner associated with You, for the purpose of verifying the identities of such individuals and evaluating the fraud and credit risk associated with You in connection with a business transaction. You expressly authorize Payment Gateway, prior to the creation of Your Account and from time to time thereafter, to investigate Your individual and business history and background, consumer-identifying and credit information (and that of any of Your and Your authorized representatives, directors, officers, partners, proprietors, owners, etc.), and to obtain credit or consumer reports or other background investigation reports on each of them that Payment Gateway consider necessary to review the acceptance of Your merchant application and continuation of the Payment Gateway Services. You also authorize any person or credit reporting agency that issues consumer reports to answer those credit inquiries and to furnish that information to Payment Gateway. You represent and warrant to Payment Gateway that You have obtained, and will provide to Payment Gateway upon request, written instructions and all authorizations, consents, and disclosures necessary from each such individual for Payment Gateway to obtain (and for a consumer reporting agency to provide) such information including consumer reports of such individual to Payment Gateway. You represent and warrant that You will ensure that such individual shall also authorize Payment Gateway’s sharing of information of such individual in connection with obtaining such consumer reports from the consumer reporting agencies and other third party providers who conduct background and identification screening. You agree to cooperate with and provide Payment Gateway with any information or documentation needed for Payment Gateway to obtain such information from consumer reporting agencies, and agrees that it will comply with all applicable requirements under all applicable state and federal laws and regulations. For purposes of this Agreement, “Beneficial Owner” means any person who either directly or indirectly owns or controls at least 25% or more of Your ownership interests as well a person who exercises substantial control over You. There must be at least one Beneficial Owner identified.

(d) While Payment Gateway uses commercially reasonable efforts to safeguard Data transmitted while using Payment Gateway Services, Payment Gateway does not warrant that Data will be transported without unauthorized interception or modification or that Data will not be accessed or compromised by any unauthorized third parties.

(e) With respect to the Payment Gateway Services, to the extent applicable to Payment Gateway, Payment Gateway will maintain compliance with the Payment Card Industry Data Security Standard (PCI DSS).

5.2 Your Duties

(a) You will comply at all times with the terms of this Agreement, all applicable Rules, and then-current legal obligations and security measures including without limitation those issued by the United States government, federal, state and municipal laws and ordinances, Card Association, the Federal Trade Commission, PCI DSS and any other governing body. You will comply with all Payment Gateway security protocols, notices and safeguards in effect during the term of this Agreement. Notwithstanding Payment Gateway’s assistance in understanding the Rules, You expressly acknowledge and agree that You are assuming the risk of compliance with all provisions of the Rules, regardless of whether You have possession of such Rules. You warrant that You have taken such precautions as are necessary to ensure that Your Data and Your customer’s Data is protected and that Your electronic systems are secure from breach, intrusion or compromise by any unauthorized third parties. In the event that Your system is breached and an unauthorized third party has access to or has accessed Data, You shall notify the designated parties as required under any applicable laws or industry guidelines and shall immediately notify Payment Gateway of such breach and take such prompt action and precautions as necessary to prevent any continuous or additional breach.

(b) You are solely responsible for the security of Data residing on servers owned or operated by You, or any third party designated by You (e.g., a web hosting company, processor, or other service provider), including Payment Card numbers and any other Data. You shall comply with all Card Association rules, applicable laws and regulations governing the collection, retention and use by You of Payment Card and other financial information, and You agree to provide notice to Your customers on Your web site that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement.

(c) You are solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by Payment Gateway associated with Your Account and verifying that all corresponding funds are accurately processed. If You use any application programming interfaces (APIs) provided in connection with the Payment Gateway Services, You are solely responsible for such use of the API, the security of Your credentials associated with the API, and the security of information and data submitted through the API. The fees associated with any and all Transactions and associated Data submitted to Payment Gateway are earned by Payment Gateway and shall not be reimbursed. Payment Gateway and its Third Party Service Providers will not be liable for any Transactions, including without limitation those that are unauthorized, improperly processed or approved, wrongfully declined, or otherwise, or for any access to any Transaction or Account data or Your or Your customers’ Data, including without limitation any unauthorized, illegal, or fraudulent access. Payment Gateway’s liability for unauthorized Transactions or improperly processed Transactions solely attributable to the negligence of Payment Gateway is limited pursuant to Section 13 (LIMITATION OF LIABILITY).

(d) You will not use, disclose, sell or disseminate any card, cardholder, bank account, or ACH information obtained in connection with a Transaction except for purposes of completing or settlement of a Transaction and/or resolving chargebacks, retrievals or similar issues involving a Transaction unless required to do so by court order or governmental agency request, subpoena or order.

(e) You are solely responsible for compiling and retaining permanent records of all Data for Your reference. Except as otherwise provided in this Agreement, Payment Gateway shall have no obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or other Data collected or processed by Payment Gateway. Upon termination of this Agreement, Payment Gateway shall have no obligation to provide You with any Data. You shall use proper controls for and limit access to all Data. Prior to discard You shall render all Data unreadable and abide by any laws or regulations imposed on You for Data destruction and/or disposal.

(f) You represent and warrant that You have provided notice to, and obtained consent from, Your customer whose Data You supply to Payment Gateway with regard to: (i) the purposes for which Your customer’s Data has been collected; (ii) the sharing and use of Your customer’s Data with Payment Gateway and its Third Party Service Providers and its and their agents, suppliers, and contractors; (iii) which parts of customer’s Data are obligatory and which parts, if any, are voluntary; and (iv) how Your customers can access and, if necessary, rectify the Data You hold about them. Neither Payment Gateway nor its Third Party Service Providers are responsible for any consequences resulting from Your failure to provide notice or obtain consent from such individuals nor for Your providing outdated, incomplete or inaccurate information.

5.3 Your User Name and Password Credentials

(a) In connection with Your rights described in Section 4.1 (Payment Gateway Services Grant), Payment Gateway will issue to You, or permit You to use a user name and password, to enable You and/or Your employees and agents to access Your Account and use the Payment Gateway Services. You will restrict access to such user name, password, and Account to Your employees and agents as may be reasonably necessary and consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the Account is aware of and otherwise complies with all applicable provisions of this Agreement and any recommendations and notices regarding such use and access.

(b) You are solely responsible for maintaining adequate security and control of any and all user names, passwords, or any other codes that are issued to You by Payment Gateway or selected by You, for purposes of giving You access to the Payment Gateway Services. Payment Gateway shall be entitled to rely on information it receives from You and may assume that all such information was transmitted by or on behalf of You.

5.4 Audits

Payment Gateway and its Third Party Service Providers, or their designees, may, during the term of this Agreement and for a period of 12 months thereafter, conduct an audit of Your books, records, and operations to verify the accuracy of fees, Your proper use of the Payment Gateway Services, and compliance with this Agreement and with applicable laws and Rules. The auditing party will use reasonable efforts to provide at least five business days’ advance notice of any such audit, and will use reasonable efforts to ensure that the audit does not unreasonably disrupt Your business. You will provide all reasonable cooperation with any such audit and will provide all requested information and records and reasonable access to Your premises, computer systems, databases, equipment, and personnel. Each party will bear its own costs in connection with any such audit, except that if an audit reveals a material breach of this Agreement by You, You will reimburse Payment Gateway or the Third Party Service Provider for its costs incurred in connection with such audit. If the audit identifies that You have underpaid any fees due under this Agreement, You will pay all such amounts within 15 days.

6. TRADEMARKS

6.1 Trademark Use

(a) Payment Gateway grants to You the right to use, reproduce, publish, perform and display the Payment Gateway Marks as follows: (i) on Your web site in connection with Your offering of Payment Gateway Services to Your customers; and (ii) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Payment Gateway Services.

(b) You grant to Payment Gateway and its Third Party Service Provider the right to use, reproduce, publish, perform and display Your Marks as follows: (i) in connection with the development, use, reproduction, modification, adaptation, publication, display and performance of the Payment Gateway Services offered and/or accessible through Your web site; and (ii) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Payment Gateway Services.

(c) For purposes of this Agreement, “Your Marks” means Your customary name and logo, and such other trademarks as You may provide to Payment Gateway and from time to time notify Payment Gateway to be “Your Marks” within the meaning of this Agreement. For purposes of this Agreement, “Payment Gateway Marks” means Payment Gateway customary name and logo, and such other trademarks as Payment Gateway may provide to You and from time to time notify You to be “Payment Gateway Marks” within the meaning of this Agreement. If such a license is granted by a Third Party Service Provider for You to be able to use or display such Third Party Service Provider’s trademarks, then Payment Gateway Marks may also include such Third Party Service Provider’s trademarks.

6.2 Trademark Restrictions

(a) Each party shall comply with all standards with respect to the other party’s Trademarks which may be furnished by such party from time to time and all uses of the other party’s Trademarks in proximity to the trade name, trademark, service name or service mark of any other person or entity shall be consistent with the standards furnished by the other party from time to time. Neither party shall create a combination mark consisting of one or more Trademarks of each party. All uses of the other party’s Trademarks shall inure to the benefit of the party owning such Trademark. Each party acknowledges and agrees that, as between the parties, the other party is the owner of the Trademarks identified as its Trademarks in any written notice provided to the other party pursuant to this Agreement. Either party may update or change the list of Trademarks usable by the other party at any time by written notice to the other party.

(b) Except as otherwise provided in this Agreement, You shall not use, register or attempt to register any Payment Gateway Trademarks or marks or domain names that are confusingly similar to any of the Payment Gateway Trademarks, marks or domain names. Except as authorized in this Agreement, You shall not take any actions inconsistent with Payment Gateway’s ownership of Payment Gateway’s Trademarks and any associated registrations or attack the validity of them. You shall not use Payment Gateway’s Trademarks in any manner that would indicate You are using such Payment Gateway Trademarks other than as a licensee nor assist any third party do any of the same.

7. INTELLECTUAL PROPERTY

As between Payment Gateway and You, Payment Gateway (or its Third Party Service Providers and Value Added Solutions Resellers, as applicable) owns and retains all right, title and interest in and to the Payment Gateway Services, Trademarks, copyrights, technology and any related technology utilized under or in connection with this Agreement, including but not limited to all intellectual property rights associated pursuant to this Agreement. No title to or ownership of any of the foregoing is granted or otherwise transferred to You, Your customers, or any other entity or person under this Agreement. You shall not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of Payment Gateway Services or related technology. You agree to promptly report to Payment Gateway any unauthorized use or infringement of the Payment Gateway Services or any Payment Gateway’s intellectual property which comes to Your attention.

8. PAYMENT TERMS

8.1 Due Date and ACH Authorization

(a) Payment Gateway fees shall begin on the Effective Date and You will be billed on the first business day of each month following the Effective Date for any and all amounts owing under this Agreement. If fees accrue to more than $50.00 USD at any time in any given month, Payment Gateway will bill You the full amount due on a more frequent basis at Payment Gateway’s discretion.

(b) You authorize Payment Gateway and its Third Party Service Providers and agents to initiate transaction entries to Your depository account through ACH. This authority will remain in full force and effect until (i) Payment Gateway has received written notification from You of Your request for termination in such time as to afford Payment Gateway and Your depository institution a commercially reasonable opportunity to acknowledge and respond to the request or (ii) Payment Gateway has collected all fees due and owing under this Agreement. If Payment Gateway is unable to collect amounts owing from Your depository account, You authorize Payment Gateway to charge Your credit card for any and all amounts owing to Payment Gateway under this Agreement. Entries initiated to or from Your depository account will be in accordance with the NACHA Rules and/or any other applicable Rules, regulatory body or agency having jurisdiction over the subject matter.

(c) You must promptly update Your Account information with Payment Gateway with current and accurate information. If You fail to provide Payment Gateway with current and accurate depository account or credit card account information, Payment Gateway may immediately discontinue or suspend providing Payment Gateway Services to You, without liability of any kind, until such information is provided to Payment Gateway and/or terminate this Agreement without liability of any kind. You acknowledge that any change in Your depository or credit card account information may not be effective until the month following the month in which Payment Gateway receives such notice. Termination of Your authorization shall result in termination of any and all Payment Gateway Services.

9. FEES

9.1 Payment Gateway Service Fees

You shall pay to Payment Gateway the fees as set forth in the Fee Schedule provided to You by Payment Gateway. The Fee Schedule is incorporated into the terms of this Agreement by reference. Payment may modify or update the Fee Schedule in its sole discretion with 30 days’ prior notice to You.

9.2 Other Fees and Charges

(a) You shall incur a late fee in the amount set forth in the fee schedule if any amounts due to Payment Gateway under this Agreement are not paid on or before the tenth (10^th) day following the date when due. In addition, You shall be subject to a finance charge equal to one and one-half percent (1.5%) per month or the highest rate allowable by law, whichever is less, determined and compounded daily from the date due until the date paid. Payment of such late fees and finance charges will not excuse or cure any breach or default for late payment. Payment Gateway may accept any check or payment from You without prejudice to its rights to recover the balance due or to pursue any other right or remedy. No endorsement or statement on any check or payment or any correspondence accompanying any check or payment or elsewhere will be construed as an accord or satisfaction.

(b) On each occurrence when Payment Gateway is unable to collect fees on Your Account for any reason, including but not limited to insufficient funds, closed depository account, or any other negative response, Payment Gateway may charge You a Return Payment Fee in the amount of $25.00 USD per occurrence, or as otherwise set forth in the Fee Schedule.

(c) If You have not paid all owing amounts after two (2) days past the due dates set forth in this Section 9 (FEES), Payment Gateway may, in its sole discretion, discontinue or suspend providing You with Payment Gateway Services. If You have still not paid all owing amounts after thirty (30) days following the date the payment was due, then Payment Gateway may, in its sole discretion and without liability of any kind, immediately terminate this Agreement. Notwithstanding, if You subsequently pay in full all owing fees, including but not limited to late fees, finance charges and Return Payment Fees, and if Payment Gateway has not already terminated this Agreement, then Payment Gateway may elect to reactivate the Payment Gateway Services and charge You a Payment Gateway Service reactivation fee in the amount set forth in the Fee Schedule.

(d) You agree to pay all costs and expenses of whatever nature, including attorneys’ fees, incurred by or on behalf of Payment Gateway in connection with the collection of any unpaid charges and fees.

9.3 Taxes

All fees set forth in the applicable Fee Schedule are exclusive of taxes. You are solely responsible for, and will indemnify and hold Payment Gateway and its Third Party Service Providers harmless from, payment of all applicable taxes and duties (only excluding taxes levied on Payment Gateway based on its own net income).

10. TERMINATION

10.1 Termination by You

You may terminate this Agreement with or without cause, and for any reason, by providing Payment Gateway with at least thirty (30) days written notice of Your intent to terminate this Agreement.

10.2 Termination by Payment Gateway

(a) Payment Gateway may terminate this Agreement and/or terminate Your use of Payment Gateway Services immediately, or at any time, without advance notice and with or without cause, for any reason including without limitation to Your breach or default of any obligation set forth in this Agreement or if Payment Gateway determines, in its sole discretion, that Your business practices are detrimental to the achievement of Payment Gateway’s business objectives, or if a Payment Gateway’s relationship with its Third Party Service Provider terminates or the Third Party Service Provider otherwise ceases supplying Payment Gateway with services necessary for the delivery of the Payment Gateway Services.

10.3 Termination by Third Party

In the event Payment Gateway is notified by a Third Party Service Provider, court of competent jurisdiction, governmental body or authority, Acquiring Bank or the Card Association that You are no longer entitled to receive the Payment Gateway Services for any reason whatsoever, Payment Gateway may suspend and/or terminate Payment Gateway Services and/or this Agreement without notice and without liability.

10.4 Effect of Termination and Survival

Upon termination of this Agreement for any reason whatsoever, all rights and interests under this Agreement shall be extinguished and shall be given no further force or effect except that (i) all accrued payment obligations under this Agreement shall survive such expiration or termination; and (ii) the rights and obligations of the parties under Section 15.11 (SURVIVAL) shall survive termination.

11. CONFIDENTIALITY AND NONDISCLOSURE

11.1 Use of Confidential Information

(a) Each party that receives Confidential Information (“Receiving Party“) from the other party (“Disclosing Party“) agrees to use reasonable best efforts to protect all Confidential Information provided by or disclosed by the Disclosing Party, and in any event, to take precautions at least as great as those taken to protect its own Confidential Information of a similar nature. The Receiving Party will only use the Confidential Information of the Disclosing Party to perform its obligations under this Agreement. Each party agrees that the terms and conditions of this Agreement will be Confidential Information, provided that each party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business.

(b) Each party agrees not to divulge any confidential information, trade secrets or know how or any information derived therefrom to any third person or entity and shall only disclose Confidential Information to employees, agents, contractors, or required third persons on a “need to know” basis who have executed a nondisclosure agreement with similar terms and obligations as restrictive as those set forth in this Agreement.

(c) The Receiving Party shall not make any use whatsoever at any time of the Disclosing Party’s Confidential Information except as permitted by, or in order to comply with its obligations under, this Agreement.

(d) The Receiving Party shall not copy or reverse engineer any portion of the Disclosing Party’s Confidential Information.

11.2 Exclusions

The foregoing restrictions will not apply to any information that: (a) the Receiving Party can document it had in its possession prior to disclosure by the Disclosing Party, (b) was in or entered the public domain through no fault of the Receiving Party, (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality, (d) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed), or (e) is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.

11.3 Return of Confidential Information

Upon written request of the Disclosing Party and at Disclosing Party’s sole discretion, Receiving Party will destroy or return to Disclosing Party all materials, in any medium, that contain, embody, reflect or reference all or any part of any Confidential Information of the Disclosing Party. Such destruction will be certified in writing by Receiving Party.

11.4 Injunctive Relief

Each party acknowledges that breach of this provision by it may result in irreparable harm to the other party, for which money damages could be an insufficient remedy, and therefore that the other party may be entitled to seek injunctive relief to enforce the provisions of this Section 11 (CONFIDENTIALITY AND NONDISCLOSURE).

12. REPRESENTATIONS AND WARRANTIES

12.1 Mutual Representations and Warranties

Each party represents and warrants to the other that (a) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; (b) the party’s obligations under this Agreement do not violate any law or breach any other agreement to which such party is bound; (c) it has all necessary right, power and ability to execute this Agreement and to perform its obligations under this Agreement; and (d) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement.

12.2 Your Representations and Warranties

(a) You represent and warrant that (i) You are engaged in a lawful business that includes the sale of products and/or services, and are duly licensed to conduct such business under the laws of all jurisdictions in which You conduct business; (ii) all statements made by You pursuant to this Agreement, or in any other document relating hereto by You or on Your behalf, are true, accurate and complete in all material respects; (iii) all Transactions submitted in connection with the Payment Gateway Services are for bona fide business operations compliant with applicable Rules, laws, and regulations; (iv) You are not engaged in any illegal or fraudulent business operation or any business operation prohibited by any applicable law, regulation, or Rule, or in any business identified on a prohibited activities list promulgated by any Third Party Service Provider or the Card Associations; and (v) You have all necessary right to any data or materials You use or provide to Payment Gateway in conjunction with the Payment Gateway Services, and no such data or materials infringe the intellectual property rights of any third party. You authorize Payment Gateway to investigate and confirm the information submitted by You. For this purpose, Payment Gateway may utilize credit bureau / reporting agencies and / or its own agents, as described in Section 5.1(b) (Use of Your Data).

(b) You represent and warrant that You will comply with all Rules, applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction. You will further comply with PCI DSS, the Gramm-Leach-Bliley Act, and any other regulatory body or agency having jurisdiction over the subject matter hereof.

(c) You will abide with all material terms of the then current policies, procedures, and guidelines of Payment Gateway governing the Payment Gateway Services.

12.3 Payment Gateway Representations and Warranties

(a) Payment Gateway Services are designed for use with certain third-party programs, including, without limitation, certain Internet browser software programs. You will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Payment Gateway makes no warranty, express or implied, with regard to any such third-party software. Payment Gateway does not warrant the services of any third party, including without limitation Third Party Service Providers, Value Added Solutions Resellers, if applicable, or the Card Association.

12.4 Warranty Disclaimer

PAYMENT GATEWAY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS OR WARRANTIES. PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS DO NOT REPRESENT OR WARRANT THAT THE PAYMENT GATEWAY SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR FREE. YOU MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE PAYMENT GATEWAY SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING, BUT NOT LIMITED TO REPRESENTATIONS BY THIRD PARTY SERVICE PROVIDERS. PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS SPECIFICALLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS OR IMPLIED ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE PAYMENT GATEWAY SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS SHALL BEAR NO RISK WITH RESPECT TO YOUR SALE OF PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD, ACH FRAUD, CHECK FRAUD OR CHARGEBACKS.

12.5 Disputes of Fees

The parties shall promptly investigate any disputes under this Agreement. If the disputed amount is less than five percent (5%) of the total fees invoiced by Payment Gateway for the relevant billing statement, the total amount invoiced shall be due and payable on or before the due date. If the amount in dispute is greater than five percent (5%) of the total fees invoiced by Payment Gateway for the relevant billing statement, the disputed amount may be withheld until the dispute is resolved. All disputes must be made in good faith and in writing within thirty (30) days after the billing statement date. Fees billed shall be deemed accepted where written objections are not provided to Payment Gateway within thirty (30) days after the billing statement date.

13. LIMITATION OF LIABILITY

13.1 Payment Gateway Disclaimers

(a) PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, WHICH ARISES FROM OR RELATED TO ANY UNAUTHORIZED ACCESS TO YOUR ACCOUNT, FACILITIES, OR TO YOUR DATA OR PROGRAMS DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS OR DEVICES USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND PAYMENT GATEWAY’S REASONABLE CONTROL.

(b) PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, ARISING FROM OR RELATED TO: (I) YOUR FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE YOUR ACCOUNT(S); (II) FRAUDULENT TRANSACTIONS PROCESSED THROUGH YOUR ACCOUNT(S); (III) DISRUPTION OF PAYMENT GATEWAY SERVICES, SYSTEMS, SERVER OR WEB SITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (IV) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A THIRD PARTY SERVICE PROVIDER, OR ACQUIRING BANK; (V) UNAUTHORIZED ACCESS TO YOUR DATA OR YOUR CUSTOMER’S DATA INCLUDING BUT NOT LIMITED TO, PAYMENT CARD NUMBERS, OTHER PERSONALLY IDENTIFIABLE INFORMATION, TRANSACTION DATA OR PERSONAL INFORMATION BELONGING TO PAYMENT GATEWAY, YOU, YOUR CUSTOMER, OR ANY THIRD PARTY; OR (VI) YOUR SALE OF PRODUCTS OR SERVICES (INCLUDING WITHOUT LIMITATION ANY RISK ASSOCIATED WITH PAYMENT CARD FRAUD, ACH FRAUD, CHECK FRAUD, CHARGEBACKS, TRANSACTION RATING, IMPROPERLY AUTHORIZED TRANSACTIONS, LEGITIMATE BUT UNAUTHORIZED TRANSACTIONS, DATA TRANSMISSION ERRORS, OR ANY ACTION OR OMISSION BY A THIRD PARTY).

(c) PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY LIABILITY OR LOSS FOR THE LEGITIMACY OF YOUR TRANSACTIONS, ORDERS FORWARDED FROM YOU AND FOR ANY AND ALL CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM CONCLUSIONS DRAWN FROM THE DATA PROVIDED BY ANY PAYMENT GATEWAY SERVICES PROVIDED BY PAYMENT GATEWAY, OR ANY ASSOCIATED SYSTEM OR PROGRAM OR THE LIMITATION OF THE FUNCTIONING OF ANY ASSOCIATED SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT, WHETHER IT IS OWNED BY PAYMENT GATEWAY OR OFFERED THROUGH A THIRD PARTY SERVICE PROVIDER OR OTHER ENTITY.

13.2. Payment Gateway Limitation of Liability

(a) UNDER NO CIRCUMSTANCES WILL PAYMENT GATEWAY OR ANY OF ITS PARENTS, AFFILIATES OR THIRD PARTY PROVIDERS, OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, AFFILIATES OR THIRD PARTY PROVIDER, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES HOWEVER OR WHENEVER ARISING, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT, INCLUDING NEGLIGENCE, CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY FINES, FEES, PENALTIES, ASSESSMENTS OR OTHER AMOUNTS IMPOSED BY THE CARD ASSOCIATIONS ARE DIRECT DAMAGES AND WILL NOT BE DEEMED TO BE SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES.

(b) PAYMENT GATEWAY’S TOTAL LIABILITY TO YOU, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY PAYMENT GATEWAY SERVICES OR PRODUCTS, SHALL NOT EXCEED THE AGGREGATE COMPENSATION PAYMENT GATEWAY RECEIVED FOR PROVIDING THE PAYMENT GATEWAY SERVICES TO YOU DURING THE THIRTY (30) DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,500.00 USD, WHICHEVER IS LESS.

(c) You will remain liable for any liabilities and losses and other amounts incurred by Payment Gateway arising under this Agreement that are attributable in whole or in part to: (i) intentional misrepresentation, fraud, willful or intentional acts or omissions or negligence by You or Your employees or agents, or the failure of any of such persons to comply with this Agreement, Rules, applicable laws, rules or regulations, (ii) Your breach of any provision of this Agreement or other applicable agreement associated with the Payment Gateway Services; (iii) any information, Data, or Transactions that You know or should have known contains inaccuracies or omissions; (iv) any security breach or unauthorized access to Data or Confidential Information caused by the actions of You or any of Your employees or agents; or (v) any assessments, fines, penalties or other amounts (however labeled) imposed by the Card Associations or any governmental or regulatory body or other third party as a result of any action or inaction by You or any of Your employees or agents. All such obligations and amounts imposed by third parties will be deemed direct, not indirect or consequential, damages, and will be collectible notwithstanding any provision in this Agreement to the contrary.

14. INDEMNIFICATION

You shall defend, indemnify, and hold harmless Payment Gateway and its Third Party Service Providers, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by Payment Gateway, arising out of or relating to (i) any breach or alleged breach by You of any representation, warranty, or obligation of You set forth in this Agreement; (ii) Your violation or non-compliance with any Rules, applicable law, rule, regulation, order; (iii) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by You or any of Your employees, agents or customers; (iv) the reliability, accuracy, or legitimacy of Data or purchase orders submitted by You to Payment Gateway; (v) Transactions, including unauthorized or fraudulent Transactions, submitted using the Payment Gateway Services, including Transactions rejected by Payment Gateway or an issuing bank, and; (vi) any alleged infringement of a patent, copyright, trademark or other intellectual property right by You or arising from any data or other materials or technology supplied by You or from Your use of the Payment Gateway Services in unauthorized manner; (vii) any claims by Your customers, including, without limitation, claims relating to the disclosure of personal data or other consumer data, or claims relating to the goods or services sold by You; (viii) any alleged or actual violation or non-compliance by You of any Rules, applicable laws, regulations or rules of (a) the Card Associations, including non-compliance of PCI-DSS; (b) the Gramm Leach Bliley Act; (c) or any regulatory body or agency having jurisdiction over the subject matter hereof; (ix) any violation of Payment Gateway’s then current policies or guidelines; or (x) any data breach or any unauthorized access, use, or disclosure of Confidential Information, personal data, card information, or Your credentials from systems and networks controlled by You or Your service providers. In the event You cause fines and/or penalties to be charged to Payment Gateway by the Card Associations or any other entity, You agree to immediately reimburse Payment Gateway for said fines and penalties.

15. GENERAL PROVISIONS

15.1 Non-exclusivity

Each party acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described in this Agreement.

15.2 Notices

All notices to You shall be given electronically, sent to the electronic mail address provided by or for You during registration for the Payment Gateway Services and/or posted in the Merchant Control Panel of Your Account. All notices to Payment Gateway shall be given electronically by sending an email to Payment Gateway’s email address listed within the Merchant Control panel of Your Account or, if otherwise, to [insert email address and physical address if applicable], which written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid.

15.3 Relationship of the Parties

The parties are independent contractors and nothing in this Agreement shall make them joint venturers, partners, employees, agents or other representatives of the other party. Neither party shall make any representation that suggests otherwise.

15.4 Assignment

You will not have the right or the power to assign any of Your rights or delegate the performance of any of Your obligations under this Agreement without the prior written consent of Payment Gateway, including in the case of a merger. Payment Gateway will have the right to assign this Agreement to its successors and/or assigns, subsidiaries, affiliates, and/or Third Party Service Providers.

15.5 Amendment

No amendment to any provision of this Agreement, nor consent to any departure by either party, will in any event be effective unless in writing and signed by the other party, and then such consent will be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, Payment Gateway may amend this Agreement at any time upon written or electronic notice to You or post notice on its Web site not less than ten (10) days prior to the effective date of such amendment; provided that the addition or change of service fees, will become effective upon at least thirty (30) days’ notice. If You do not agree to such amendments, Your sole remedy is to immediately terminate this Agreement upon written notice to Payment Gateway.

15.6 Waiver

The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained in this Agreement must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.

15.7 Severability; Headings

If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.

15.8 Force Majeure

Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services or other catastrophes or any other occurrences which are beyond such parties’ reasonable control (each a “Force Majeure Event“), provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event.

15.9 Governing Law; Jurisdiction

This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Delaware without reference or giving effect to its conflicts of law principles. You hereby irrevocably consent to the personal jurisdiction of and venue in the state and federal courts located in Delaware with respect to any action, claim or proceeding arising out of or related to this Agreement and agree not to commence or prosecute any such action, claim or proceeding other than in such courts. EACH PARTY EXPRESSLY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY DISPUTE UNDER THIS AGREEMENT.

15.10 Entire Agreement

This Agreement together with all of Payment Gateway’s policies referenced in this Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. You acknowledge that this Agreement reflects an informed, voluntary allocation between Payment Gateway and You of all risks (both known and unknown) associated with Payment Gateway Services.

15.11 Survival

The provisions of this Agreement relating to any fees or other amounts owed, payment of finance charge on unpaid fees, confidentiality, warranties, limitation of liability, indemnification, governing law, severability, headings, third party beneficiary, this section 15, and any other provisions that by their nature should survive termination shall survive termination or expiration of this Agreement.

15.12 Third Party Beneficiary

You acknowledge and agree that Network Merchants, LLC (“NMI“) as a Third Party Service Provider is an intended third party beneficiary of this Agreement, and NMI is entitled to enforce the terms of this Agreement against You with respect to the Payment Gateway Services as if it were an original party to this Agreement.

Appendix A – Value Added Solutions

In the event You enroll in, and Payment Gateway provides You with, Value Added Solution(s), You agree as follows and are subject to the applicable terms for Value Added Solutions that are presented during your enrollment.

1. Expansion of Services

The term “Payment Gateway Services,” as defined in the Agreement, shall include each of the Value Added Solutions. Each Value Added Solution is described on the Payment Gateway website and in other documentation provided to You from time to time. All terms of the Agreement applicable to the Payment Gateway Services shall be applicable to each Value Added Solution.

2. Your Obligations

In addition to Your obligations set forth in the Agreement, You agree to pay the Value Added Solution Fees, in accordance with Section 8 (PAYMENT TERMS) and Section 9 (FEES) of the Agreement, in the amounts provided in the Fee Schedule provided to You by Payment Gateway. The Fee Schedule is incorporated into the terms of this Agreement by reference and/or in the Value Added Solution documentation page accessed during enrollment in the applicable Value Added Solution. By checking the “I ACCEPT” button next to a Value Added Solution Fee schedule, You acknowledge Your acceptance of such fees, Your obligation to pay the same and the terms and conditions applicable to the Value Added Solution.

3. Your Warranty

You represent, warrant, and covenant to Payment Gateway that Your use of the Value Added Solutions and any information submitted in connection with the Value Added Solutions: (a) will be fully compliant with all applicable local, state and federal laws, rules, and regulations, Card Association rules, NACHA rules; (b) will be in accordance with all applicable documentation; and (c) will not be used for any purpose other than in connection with the Value Added Solution.

4. Acknowledgement

You understand, acknowledge, and agree that (a) You will be solely responsible for ALL transactions processed through Your Account(s), regardless of whether such Transactions are monitored by a Value Added Solution; (b) You will be solely responsible for Your use of the Value Added Solutions including, without limitation (i) configuring, maintaining and updating, as You deem necessary, the applicable settings for Your Value Added Solution account; and (ii) with respect to each Transaction processed via Your Account(s), and regardless of any data, analysis, or information generated or not generated by the Value Added Solution, as applicable, determining the appropriate action for each such Transaction (i.e., approve, void, decline, reject); (c) under certain circumstances, it may be necessary for Payment Gateway to adjust Your Value Added Solution security settings, with or without notice to You, to guard against fraudulent activity and that such actions may inadvertently cause legitimate transactions to expire, be rejected or delayed; and (d) Payment Gateway shall not be liable under any theory of law, including negligence, for any loss associated with any of the foregoing.

5. Payment Gateway Warranty

IN ADDITION TO ANY LIMITATIONS OR DISCLAIMERS SET FORTH IN THE AGREEMENT, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THE VALUE ADDED SOLUTIONS ARE PROVIDED TO YOU BY PAYMENT GATEWAY “AS IS” AND THAT PAYMENT GATEWAY DOES NOT REPRESENT OR WARRANT THAT THE VALUE ADDED SOLUTIONS OR ANY OTHER TECHNOLOGY, CONTENT, INTELLECTUAL PROPERTY, OR ANY OTHER INFORMATION, DATA, PRODUCTS, OR SERVICES, WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE, AND THAT YOUR SOLE REMEDY FOR ANY ISSUE RELATED TO OR ARISING FROM THE VALUE ADDED SOLUTIONS, AND PAYMENT GATEWAY’S SOLE LIABILITY FOR THE SAME, WILL BE TO TERMINATE THIS AGREEMENT AND DISCONTINUE YOUR USE OF THE VALUE ADDED SOLUTIONS.

6. Risk, Security and Disclosure

The risk and security suggestions provided to You in the documentation for any of the Value Added Solutions are solely for illustrative purposes to show best industry practices, and You shall be solely responsible for choosing the appropriate settings and parameters for Your Account.

7. Termination

If this Agreement is terminated for any reason, Payment Gateway shall immediately cancel access to Your Value Added Solution account. It is Your responsibility to download all reports prior to the effective date of any such termination as such reports will not be available following the termination date.

8. Incorporation by Reference

The Value Added Solutions Fee Schedules are incorporated into the Agreement by reference.

9. Third Party Programs

Payment Gateway makes no warranty, express or implied, with regard to any third party services or software.

10. Definitions

All terms and conditions of the Agreement not specifically modified in this Appendix A shall remain unchanged and in full force and effect. Unless separately defined in the Agreement, capitalized words used in this Appendix as defined terms shall have the same meanings as in the Agreement.

Appendix B – Prohibited Activities

You agree that You will not at any time conduct Your business in any manner that directly or indirectly offers, sells, leases, licenses or displays, delivers, advertises, recommends, or promotes any product(s), service(s), data, information, image(s), text and/or any content which:

(i) is unlawful or violates any applicable local, state, federal, national or international law, statute, ordinance, or regulation including, without limitation, Card Association rules, consumer protection laws, unfair competition, antidiscrimination or false advertising;

(ii) is associated with any illegal form of adult, sexually oriented, or obscene materials or services, including without limitation, any material clearly designed to sexually arouse the viewer/reader with images of children less than 18 years old and/or escort services;

(iii) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party, including, but not limited to, the unauthorized copying and posting of trademarks, pictures, logos, software, articles, musical works and videos;

(iv) is threatening, abusive, harassing, defamatory, obscene, libelous, slanderous, deceptive, fraudulent, invasive of another’s privacy, tortuous, or otherwise violate Payment Gateway’s rules or policies;

(v) victimizes harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;

(vi) impersonates any person or entity;

(vii) contains harmful content, including, without limitation, software viruses, Trojan horses, worms, time bombs, cancel bots, spy-ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, surreptitiously intercept or expropriate the Payment Gateway Services or any system, program, data or personal information or limit the functioning of any software, hardware, or equipment or to damage or obtain unauthorized access to any data or other information of any third party;

(viii) violates any U.S. export or import laws, including, without limitation, the Export Administration Act and the Export Administration Regulations maintained by the Department of Commerce;

(ix) offers or disseminates fraudulent goods, services, schemes, or promotions (i.e., make money fast schemes, chain letters, pyramid schemes) or engage in any unfair deceptive act or practice;

(x) is associated with any form of illegal gambling or illegal lottery type services;

(xi) is associated with illegal telecommunications or illegal cable television equipment or illegal satellite equipment;

(xii) is associated with electronic wallets (i.e., “e-wallets”) or any similar payment type; or

(xiii) is associated with the sale of (a) any controlled drug that requires a prescription from a licensed practitioner unless You are authorized by the National Association of Boards of Pharmacy to offer such products as a Verified Internet Pharmacy Practice Site and only if such a prescription has been issued by the practitioner after a bona fide examination of the patient; or (b) any over-the-counter drug, unless the sale of such product, without a prescription, has been approved by the Food & Drug Administration; or (c) nonprescription drugs that make false or misleading treatment claims or treatment claims that require FDA approval; or (d) any drug or controlled substance that Payment Gateway believes to be or may become harmful, unlawful, or prohibited. Payment Gateway requires sellers of prescription drugs to abide by all laws applicable to both the buyer and seller and may require You to provide evidence of compliance with these requirements. In addition, due to the complexities of current laws regulating the importation of controlled drugs into the United States, You may not use the Payment Gateway Services to sell prescription drugs that are imported into the United States from an international location. The foregoing list is a non-exhaustive list of prohibited goods and services.

Partner Terms and Conditions

Last Updated: October 12, 2026

If Company is signing up to market and promote the NMI Services to Company’s merchants or other customers, these Partner Terms and Conditions (“Partner Terms“) will apply, in addition to the Proposal(s), General Terms and Conditions, the applicable Service Terms, and any other terms set forth in the Agreement. For the purpose of these Partner Terms, the term “Services” shall mean the Services identified in these Partner Terms and applicable Service Terms. Company shall owe the fees and/or receive residual payments as indicated in the applicable Fee Schedule or Proposal.

1. Definitions; Interpretation

1.1. Definitions. Capitalized terms used but not defined in these Partner Terms or applicable Service Terms will have the meanings given to them in the General Terms and Conditions or elsewhere in the Agreement. In addition, the following definitions will apply to these Partner Terms.

“Company Products” means Company’s products and services that NMI expressly permits in each instance to be integrated with the Services in accordance with the Agreement.

“Commissions” means those residual commissions paid to Company under the Agreement for revenue NMI receives and retains from Merchants in connection with the Services provided to such approved Merchants.

“Merchant Losses” means any and all losses and liabilities arising under a Merchant Agreement, including without limitation Merchant fraud, chargebacks, unpaid fees, bankruptcy, data and security breaches, unauthorized use of a Merchant’s credentials or other credential fraud, and any Payment Network assessments, fines, or penalties attributable to a Merchant or its processing activity.

2. Partner Activities

2.1. Grant of License. Subject to the terms and conditions of the Agreement, NMI grants to Company a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable (unless otherwise permitted by NMI in writing) right to access and use the Services and all reference materials and associated materials solely to: (a) integrate the Company Products with the Services; and (b) market and resell the Services to Company’s Merchant customers.

2.2. Sub-Affiliates. Subject to the terms and conditions of the Agreement, Company may sublicense to its sub–affiliates (“Sub-Affiliates“) the rights granted in 2.1 by NMI to Company. Prior to any sublicense by Company to Sub-Affiliates, Company will ensure it enters into a sublicense agreement with its Sub-Affiliate (“Sub-Affiliate Agreement“), and ensure that each Sub-Affiliate Agreement will: (a) be consistent with, and be subject to the restrictions, exceptions, obligations (including payment of fees), representations and warranties, and other terms and conditions of this Agreement; (b) prohibit Sub-Affiliates from further granting a sublicense to third parties; and (c) automatically terminate effective thirty [30] days after this Agreement terminates for any reason without necessity of any notice from NMI to Sub-Affiliate. Company acknowledges and agrees that NMI is not a party to the Sub-Affiliate Agreement, and NMI and has no liability to and disclaims all liability to Company, Sub-Affiliate, or Merchants solicited by Sub-Affiliate with respect to Company’s sublicense of rights to a Sub-Affiliate, the Sub-Affiliate Agreement, or other terms within this Section 2.2. Company is solely responsible for, and assumes all liability, including any loss, penalty, fine, settlement, cost, damage, injury or expense, associated with: (x) the Sub-Affiliate between Company and its Sub-Affiliate(s); (y) Sub-Affiliates compliance with these Partner Terms and General Terms, and other applicable terms, including compliance with all Laws and Rules and NMI security protocols, policies, procedures and notices as may be updated by NMI from time to time; (z) the performance of its Sub-Affiliate(s), including all acts and omissions of its Sub-Affiliate(s), regardless of whether Company delegated those obligations to its Sub-Affiliates. Upon NMI’s request, Company will provide NMI with a copy of its Sub-Affiliate Agreement.

2.3. Integration. Subject to and in accordance with the terms and conditions of the Agreement, an integration permitted under this Agreement must conform to the specifications, application program interfaces (APIs), and other documentation provided by NMI for such purposes, as each may be updated at any time by NMI in its sole discretion. In addition, Company will at all times comply with NMI’s then-current policies, procedures, and guidelines governing the Services, as updated from time to time in NMI’s sole discretion. Company is solely responsible for, assumes all liability, including any loss, penalty, fine, settlement, cost, damage, injury or expense, associated with the integration between the Company Products and the Services.

2.4. Marketing. Subject to and in accordance with the terms and conditions of the Agreement, NMI hereby appoints Company on a nonexclusive basis to market and promote the Services, solicit orders for Services, and refer Merchants to NMI for potential enrollment in the Services, including Value Added Solutions and Gateway Services. Company will use its best efforts to solicit and refer its customers to NMI for the Services. Company will not knowingly refer any Merchant to NMI which is engaged in a business that violates any applicable law or Rule, or is prohibited from using the Services by the Payment Networks, or which Company has reason to believe is operating in a fraudulent manner. Company shall accurately describe the Services to each Merchant. Without limiting the generality of the foregoing, Company will make no representation, warranty or description regarding the performance, functional characteristics or other aspects of any Service that is beyond those stated in NMI’s then current and officially approved marketing and promotional materials. Company is not authorized to, and will not, make any representation or warranty on behalf of NMI except as NMI may expressly consent to in writing. Company will provide true, accurate and current information in connection with Merchants referred for the Services, as requested by NMI. The rights granted to market, promote, offer, sell and otherwise distribute Services hereunder are subject to any and all applicable rights of third parties or Third Party Service Providers. Company will comply with all applicable third party and Third Party Service Provider restrictions and limitations.

2.5. No Exclusivity. These Partner Terms are non-exclusive, and NMI will be entitled to appoint other sales agents, ISVs, and partners to market the Services; and Company may represent or market other services of third parties.

2.6. Passwords. NMI may issue credentials to Company (such as a user name and password) to enable Company and its employees and agents to access a Company account for purposes of referring Merchants to NMI. For each Merchant, Company will: (a) submit to NMI using the forms and tools provided on NMI’s website all information required by NMI for each referred Merchant including but not limited to the pricing terms offered to, and agreed by, the Merchant; and (b) if the Merchant is approved, guide the Merchant through the login and enrollment process on the NMI website for activating its account, including but not limited to execution by the Merchant of a Merchant Agreement, as applicable (which may be accomplished via electronic signature).

2.7. Approval. Activation of a Merchant’s account is subject to NMI’s approval in its sole discretion, and NMI reserves the right to refuse to activate or provide Services to any Merchant submitted by Company. In addition, activation of any third-party services will be subject to approval and acceptance by the applicable third party, and NMI makes no guarantees regarding such approval and acceptance. Notwithstanding any other provision in the Agreement, NMI may reject a Merchant if such entity had an existing contractual relationship with NMI as of the date of such referral or had previously been in contact with NMI or another sales representative of NMI concerning any of the Services.

2.8. Enrollment. For certain services, if a Merchant is accepted and all information required to activate the Merchant’s account has been submitted, NMI will send an email message to the Merchant at the email address provided by Company, instructing the Merchant to take steps to activate its account, including but not limited to entering into a Merchant Agreement (which will identify the Services to be provided to such Merchant). Alternatively, with NMI’s written approval, Company may be permitted to enter into a Merchant Agreement on behalf of the referred Merchant. In such case, Company represents and warrants to NMI that: (a) Company has obtained all legal authority from the Merchant necessary to accept such terms on behalf of the Merchant; (b) has obtained all legal authority necessary to authorize Company or NMI to debit such Merchant’s bank account for fees and amounts owed to Company; and (c) Company is an agent for such Merchant. The Merchant enrollment process may differ for certain services offered by NMI and shall remain subject to NMI’s then-current policies.

2.9. Company Responsibilities. Company shall provide customer service and technical support to Merchants, in accordance with the applicable Merchant Agreement, and to its Sub-Affiliates, if applicable. For its Sub-Affiliates, Company will provide all customer service and technical support needs to its Sub-Affiliates; however, Company may look to NMI for account portal issues (such as login and generic support). Company shall not delegate performance of any of its obligations under these Partner Terms, other than to its own employees, without NMI’s prior written authorization. Company will ensure that all authorized persons performing such obligations are properly qualified and experienced to perform the same. Company shall be fully liable to NMI for any act or omission of its employees or any person with actual or apparent authority to act on behalf of Company.

2.10. NMI Marks. NMI grants to Company, subject to the trademark terms and conditions set forth in the General Terms and Conditions, a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable license to use, reproduce, and display certain NMI Trademarks (which may include the brand names and logos associated with the Services) on Partner’s website and marketing materials in connection with Partner’s authorized use of the Services. NMI may from time to time update, supplement, or modify its list of Trademarks that it permits Partner to use in connection with these Partner Terms.

2.11. Marketing Materials. Company will submit to NMI any advertising and marketing materials Company proposes to use in connection with promoting the Services, and all such materials are subject to NMI’s prior written consent prior to use. Company’s performance of these Partner Terms and the Agreement will be at its own expense, and NMI will not be responsible to reimburse Company for any marketing materials created by Company or any marketing activities undertaken by Company.

2.12. Company Products and Agreements. Company will handle all service inquiries from Merchants relating to the Company Products. Upon notice of any updates to the Services or related APIs, Company will promptly implement the appropriate changes to the integration and/or Company Products that may be necessary as a result of such updates. Company’s provision of Company Products to Merchants will be subject to a separate agreement between Company and each Merchant, and NMI will have no obligations under any such agreement or in any way relating to the Company Products.

3. Fees

Company shall pay to NMI fees according to the applicable Proposal and subject to the terms of the General Terms and Conditions of this Agreement. Company will be responsible for the payment to NMI of all fees payable by any Sub-Affiliate under a Sub-Affiliate Agreements or a sublicense granted by Company.

3.1 Consumer Price Index Increases. At the sole discretion of NMI, effective on or subsequent to each successive anniversary of the date Services are initiated (the “Anniversary Date”), NMI may increase fees by the cumulative effect of the Consumer Price Index increase, as measured by the U.S. Bureau of Labor Statistics, over the twelve (12) month period preceding the Anniversary Date. Fee increases made pursuant to this Section 3.1 shall not be considered amendments under the General Terms and Conditions of this Agreement and a notice shall not be required prior to such increase.

3.2 General Increases. Separate from any increases outlined above in Section 3.1, effective on or subsequent to each successive Anniversary Date, NMI may increase fees at its discretion, provided that NMI will provide thirty (30) days written notice to Company. Company may terminate this Agreement by providing written notice within thirty (30) days following a fee increase made pursuant to this Section 3.2.

4. Compliance

4.1 Legal Compliance. Company shall comply at all times with, and shall require its Sub-Affiliates, if applicable, and Merchants to comply with, Laws and Rules. Company agrees to notify NMI of any changes to the Rules that it becomes aware of that may affect the Services. Company shall comply with, and shall ensure that its Merchants comply with, all NMI security protocols, notices and safeguards in effect during the term of these Partner Terms and any applicable Service Terms and the applicable Merchant Agreement. Company represents and warrants that it has taken such precautions as are necessary to ensure that its Data are protected and that its electronic systems are secure from breach, intrusion, or compromise by any unauthorized third parties. If Company’s or its third-party service provider’s system is breached or an unauthorized third party gains access to or has accessed data, Company shall notify the designated parties as required under the Laws and Rules and shall immediately notify NMI of such breach and take prompt action and precautions as necessary to prevent any further breach.

4.2 Company Conduct. Company will: (a) perform its obligations under these Partner Terms and any applicable Service Terms in the highest professional manner and in compliance with Laws and Rules; (b) conduct its business in a manner that at all times reflects favorably on NMI and its reputation and goodwill; (c) avoid deceptive, misleading, abusive, and unethical practices and marketing material; (d) avoid disparaging NMI or its directors, officers, vendors, suppliers, and customers; and (e) not engage in any act or omission which may damage NMI’s reputation, business, data security, or goodwill, or which are otherwise detrimental to the achievement of NMI’s business objectives, in NMI’s sole discretion.

4.3 Prohibited Merchants. Company will not knowingly refer any Merchant which is engaged in a business that violates any Laws or Rule or is otherwise prohibited from using the Services by the Payment Networks or a Third Party Service Provider, or which Company has reason to believe is operating in a fraudulent manner. Company will not store any nonpublic personal information of any prospective, current, or former Merchant, including but not limited to transaction information or cardholder data, except as reasonably necessary to perform its obligations under these Partner Terms or any applicable Service Terms, and then only in compliance with applicable Laws and Rules.

4.4 Company Personnel. Company shall not subcontract any of its obligations under the Agreement or these Partner Terms, other than to its own employees, without NMI’s prior written consent. Company will ensure that all of its employees and any other authorized person performing any obligation in connection with the Agreement or the Services (“Company Personnel“) is properly qualified and experienced. The acts and omissions of Company Personnel in connection with the Agreement or in performance of Company’s obligations under the Agreement will be deemed Company’s acts and omissions, and Company will be fully liable for all such acts and omissions of any Company Personnel. To the extent required by the Rules, NMI may conduct background checks on and obtain criminal and credit history reports for Company and/or any of Company’s owners, principals, directors, managers, or officers. NMI may require that Company conduct and submit to NMI background checks and criminal and credit history reports (including consumer reports) for its employees and authorized agents. NMI will have no responsibility for any cost or expense incurred by Company in connection with its operations or in performance of the Agreement. Company is solely responsible for paying (and NMI has no responsibility to withhold on Company’s behalf) any and all required federal, state and local taxes, including, but not limited to income taxes, FICA (Social Security), unemployment insurance, and disability insurance or workers’ compensation insurance with respect to Company’s employees and agents, as applicable.

4.5 Data Security. Company will be solely responsible for the Company Products, including the proper, error-free, and secure integration of such Company Products with the Services and all security of data (including without limitation cardholder and transaction data) accessed, stored on, or sent through such integration or Company’s networks and servers. Company represents and warrants that it has taken all precautions necessary to ensure that all Merchant data, cardholder data, and Personal Data are adequately protected and that the Company Products and Company’s networks, servers, and other electronic systems are secure from access, breach, intrusion, or compromise by any unauthorized third parties (including but not limited to those networks, servers, and electronic systems of any vendors or third parties used by Company). Company agrees not to use, disclose, sell, or disseminate any card, cardholder, or transaction data except as permitted or required by the Rules, a court order, governmental agency request or subpoena, or Laws. NMI will not be liable for any security breach on any systems not owned by, or controlled by, NMI.

4.6 Hosting and Technical Support. The Services shall be hosted on servers owned or operated by NMI and/or its Third Party Service Providers. NMI will provide technical support to Company and its Merchants to assist Company in carrying out its obligations under these Partner Terms and any applicable Service Terms, as set forth on the Partner Support Schedule or as otherwise provided on the applicable Proposal or Fee Schedule.

4.7 U.K. Addendum. For Services offered by Network Merchants Limited or other NMI Affiliates in the United Kingdom, the obligations set forth in the U.K. Addendum (as referenced in the General Terms and Conditions) are applicable and Company is responsible for ensuring that each Merchant agrees to and complies with such obligations.

5. Liability

5.1 Company Warranties. Company represents and warrants that any Company Products: (a) will be compliant with the Rules and certified under PCI-DSS, as applicable, and any other security standards required under the Agreement or the Rules; (b) do not contain, and will not introduce into NMI’s or any Merchant’s systems or networks, any virus or other malicious code; (c) do not contain any “copyleft” code that, if integrated with the Services, would require NMI to disclose software code included in the Services or distribute any intellectual property rights of NMI under a reciprocal license; and (d) do not and will not violate or infringe any intellectual property rights of any third party. Company understands and agrees that errors in the Company Products or integrations may result in fees, Merchant chargebacks, declined transactions, failed transactions, data breaches, and other liabilities, all of which will be Company’s sole responsibility. Furthermore, for each Merchant boarded or to whom Company grants access to the Services, Company represents and warrants that to the best of its knowledge: (i) such Merchant will only use the Services in connection with such bona fide business operation and in accordance with all Laws, regulations, and Rules; and (ii) such Merchant is not engaged in any fraudulent business operation or any business operation prohibited by NMI or any applicable law, regulation, or Rule. Lastly, for any sublicenses granted by Company to Sub-Affiliates, Company represents and warrants that it will comply with the requirements set forth in 2.2 of these Partners Terms for such Sub-Affiliates.

5.2 Merchant Losses. Except as otherwise provided in the Agreement, Company will not be responsible for Merchant Losses arising under Merchant Agreements. Notwithstanding the foregoing, however, Merchant Losses do not include, and in all cases Company will remain liable for, any Merchant Losses and other amounts incurred by NMI under the Agreement that are attributable in whole or in part to: (a) intentional misrepresentation, fraud, willful or intentional acts or omissions or negligence of Company or its agents, or the failure of any of such persons to comply with applicable Laws and Rules; (b) Company’s breach of any provision of the Agreement; (c) any Merchant Application submitted by Company that Company knows or should have known contains inaccuracies and/ or omissions; (d) any data or security breach caused by the actions of Company or any of its agents or service providers; or (e) any assessments, fines, penalties or other amounts (however labeled) imposed by a Payment Network or any governmental or regulatory body as a result of any action or inaction by Company or any of its employees or agents. Such obligations and amounts incurred will be deemed direct, not indirect or consequential, damages, and will be collectible notwithstanding any provision in the Agreement to the contrary.

5.3 Indemnification. In addition to any other indemnities set forth in the General Terms and Conditions, Company agrees to defend, indemnify, and hold NMI and its officers, directors, agents, and employees, harmless from and against any and all claims, actions, proceedings, investigations and suits and all related internal costs, liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by the above parties, arising out of or relating to any of the following: (a) the reliability, accuracy, or legitimacy of payment Data or purchase orders submitted by Company or its Merchants to NMI; (b) transactions submitted by Company or its Merchants to NMI and rejected by NMI or an issuing bank; (c) any claims by Company’s Merchants, including, without limitation, claims relating to the disclosure of consumer Data; (d) any Merchant Agreement, including any breach thereof by Company or a Merchant; (e) any violation of NMI’s then current policies or guidelines applicable to Company or any Merchants. In the event Company causes fines, assessments, or penalties to be charged to NMI by the Payment Networks or any other entity, Company agrees to immediately reimburse NMI for said fines and penalties; or (f) the performance of Company’s Sub-Affiliates, including all acts and omissions of Sub-Affiliates, and the terms and conditions of the Sub-Affiliate Agreement entered into between Company and each Sub-Affiliate. The parties agree that any such Payment Network charge, assessment, fine or penalty are direct, and not indirect, special or consequential damages.

6. Termination

6.1 Transition Assistance. Upon termination of these Partner Terms, the parties will work together in good faith to devise a mutually acceptable wind-down strategy so as to minimize disruption to Merchants. Where available, a data transfer from NMI’s systems to Company or a third party is requested, NMI shall propose to Company standard pricing fees and terms to be agreed upon by Company and NMI prior to execution of the data transfer. Notwithstanding the termination of the Service(s), for a transition period of up to one hundred eighty (180) days as requested by either party following the termination of the Agreement or any part thereof, each party shall continue to have the same rights and obligations under the Agreement as such party had under the Agreement during the Term, and the parties will cooperate in good faith to ensure the orderly wind down or transition of the Services, including providing such other transition support as reasonably requested by the other party.

6.2 Non-Solicitation. During the term of the Agreement and for three (3) years after termination of the Agreement, Company and each principal, affiliate, employee, and agent of Company will not, directly or indirectly (a) induce or attempt to induce any Merchant to modify or terminate its business association with NMI; (b) offer (or induce or facilitate the making of any such offer) employment to, enter into a contract for services of, or attempt to solicit away from NMI any employee of NMI; or (c) interfere with NMI’s relationship with any Merchant, vendor, or agent. The parties acknowledge that any breach of these non-solicitation provisions will cause immediate, irreparable and continuing damage to NMI for which there is no adequate remedy at law. Consequently, the parties acknowledge and agree that in the event of any breach or threatened breach of these non-solicitation provisions, NMI shall be entitled to temporary, preliminary, and permanent injunctive relief enjoining such breach or threatened breach and such other legal and equitable remedies as may be provided by applicable law, without the necessity of posting any bond or other security, including damages, costs of suit and attorney’s fees. This Section will survive termination of the Agreement.

Gateway Service Terms (Partner)

OMNI, CARDEASE, and USAePay

1. Interpretation; Definitions

1.1 Gateway Services. If Company is signing up to market, promote and offer the NMI gateway services, which may individually be referred to as OMNI, CARDEASE, and USAePay, as applicable (collectively referred to as the “Gateway Services” or “Services“) to Merchants, the following Gateway Service Terms (“Gateway Service Terms“) will apply in addition to the Agreement, and any other applicable terms and conditions.

1.2 NMI Affiliate. The NMI Affiliate providing the Gateway Services is set forth below. For the purposes of these Gateway Service Terms, references to “NMI” will refer to such NMI Affiliate.

(a) In the U.S.:

i. Network Merchants, LLC (for all Gateway Services other than the USAePay Gateway); or

ii. Gor Corporation d/b/a USAePay (for USAePay Gateway).

(b) In the U.K.:

i. Network Merchants, Ltd (and in such case, the UK Country Addendum referenced in the General Terms and Conditions will apply).

1.3 Additional Definitions. Capitalized terms used but not defined in these Gateway Service Terms will have the meanings given to them in the General Terms and Conditions, the Partner Terms, or elsewhere in the Agreement. In addition, the following definitions will apply to these Gateway Service Terms:

“Authorization” means a validation of a Transaction by Issuer.

“Acquirer” means a bank, processor, financial institution, or NMI itself, as applicable when such acquiring services are engaged by the Company, with which the Company uses for the acceptance of Transactions.

“Company Interface” means the interface properly developed by Company using the SDK.

“Failure” means a correction of a Transaction by Issuer.

“Issuer” means a bank or other financial institution issuing a payment card on behalf of a Card Brand or issuing a payment card directly.

“Merchant Device” means the device used by a Merchant to process Transactions, which may include (as applicable and as supported by NMI): (a) mobile phones, smartphones, tablets, PDAs, computers and other devices; and/or (b) merchant terminals, including a machine in which a PIN entry device (PED) is installed or linked to.

“Merchant Portal” means the platform operated by NMI which allows Merchants to access the Services.

“Partner Portal” means the platform operated by NMI which allows Company to manage the Services and Merchant Portals of its respective Merchants.

“Transaction” means any billable occurrence completed, evaluated, submitted, or facilitated through or using the Services (regardless of whether approved or declined), including but not limited to any sale, void, refund, credit, offline force, capture, authorization, validate, update, or settlement.

2. The Services

2.1 NMI shall, during the Term, provide to Company for the distribution to Merchants in accordance with the Agreement, the Gateway Services set forth in these Gateway Service Terms, and any Value Added Solutions or other optional services (as applicable) as indicated on the Proposal.

2.2 PCI. Company shall comply with and shall ensure that each Merchant complies with all PCI Security Standards applicable to Company and/or the Merchant, as applicable, and any PCI DSS, PCI P2PE, PA DSS, or applicable policies and procedures provided to it by NMI.

2.3 White Label. If NMI has agreed to white label its Services (as indicated on the applicable Proposal), Company will be required to enter into a Merchant Agreement with each Merchant boarded by Company, and Company has the following 2 options for the Merchant Agreement pursuant to this White Label section:

a) Company may use the White Label template provided by NMI, as may be updated by NMI from time to time to address legal, regulatory or contractual requirements. Although Company may use the White Label Template for Partner/Merchant Terms provided to it by NMI, any such White Label template provided by NMI for purposes of this section is only a suggested template and NMI disclaims any liability for the contents of the White Label template and Company’s use of or Merchant’s agreement to such White Label template terms. Company is the party responsible for ensuring that its Merchant Application, whether or not Company uses the White Label template, complies with the Rules and Laws and is updated accordingly with any changes to applicable Rules and Laws.

b) Company may generate its own Merchant Agreement, as required pursuant to this section, and Company represents and warrants that such Merchant Agreement will contain, at a minimum, provisions at least as protective of NMI and NMI’s Intellectual Property as the White Label Template for Partner/Merchant Terms.

For certain Services, as determined by NMI in its sole discretion, NMI must be a party to the Merchant Agreements. For other Services, each Merchant Agreement will be an agreement between the Merchant and Company only.

2.4 Card Testing. If Company requests to opt out of NMI’s Card Testing Prevention Tool, the Card Testing Opt Out terms will apply.

2.5 Special Requests. NMI’s policy is to truncate financial account numbers and to not process unmatched credits. Company may request exceptions to these policies, which may be granted or denied in NMI’s sole discretion. In the event NMI grants an exception, the Special Request Terms will apply.

3. Merchant and Partner Portals

3.1 NMI shall provide Merchants with access to the Merchant Portal to allow Merchant to receive Transactions and send the required data related to the Transaction to an Acquirer. NMI shall then receive the response from the Acquirer and confirm the related Authorization or Failure.

3.2 Merchant Portal shall also provide Merchants with access to additional core and Value Added Solutions via Merchant Portal as more fully described on the NMI website. The Company acknowledges that the Merchant can access the available functionality (such as, but not limited to, currencies and cards accepted) of the Services via the Merchant Portal and that any features not offered through the Merchant Portal will not be available to Merchants.

3.3 NMI shall provide Company with access to the Partner Portal. Partner Portal allows the Company to access information relating to the Merchant, review transactions conducted by Merchants, make service selections for Merchants, make Services available to Merchants through the Merchant Portal and manage the Services on the Merchant’s behalf.

3.4 Subject to the terms of these Gateway Service Terms, NMI shall permit Company to brand the Partner Portal and that Company’s respective Merchant Portals with its own branding and intellectual property.

3.5 Company is responsible for ensuring that any data added to the Partner Portal and Merchant Portal (either by Company or by any Merchant) is correct. NMI has no responsibility for and shall have no liability to the Company (or any Merchant) in respect of or connected to incorrect, inaccurate, or incomplete data added to the Partner Portal and/or Merchant Portal.

4. Fees

4.1 Platform Monthly Minimum Fee. If the Proposal specifies an amount as the Platform Monthly Minimum Fee, the following shall apply. Unless otherwise noted on the Proposal, after ninety (90) days, the lesser of (a) the Platform Monthly Minimum Fee or (b) the Platform Monthly Minimum Fee less the prior month’s gateway fees will be charged if the Company has not generated the Platform Monthly Minimum in gateway fees in the previous month. The fee shall not result if the Platform Monthly Minimum Fee has been met in gateway fees that have been generated in the prior month.

For OMNI and USAePay

4.2 Referral Fees/Commissions. NMI shall collect fees for the above Services in one of the following two ways set forth below in this Fees section, or a combination thereof, in each case as mutually agreed to by NMI and Company.

4.2.1 Merchant Debiting. If the Merchant Debiting option is selected, NMI will debit fees directly from Merchants, pursuant to the payment terms set forth in the applicable Merchant Agreement, for Services provided to such Merchants, and pay Company Commissions on such fees collected from such Merchants, less fees charged to Company under the Agreement (as set forth in the Fee Schedule/Proposal). Commissions will be paid to Company on the twenty-fifth (25th) day of each month following the month NMI collects the applicable fees from the Merchant. For clarity, Company will only receive Commissions on fees that are actually collected and retained by NMI from the Merchants. Commissions will not be owed where payments owed from Merchants are overdue and require collection efforts by NMI. If NMI is unable to collect fees from Merchants for any reason, such fees shall be deducted from Company’s earned Commission or withdrawn from Company’s depository account. NMI reserves the right to terminate Commissions to Company without prior notice if Company is in breach of the Agreement. The minimum Commission payment will be $50.00. If the minimum $50.00 has not been earned in a given month, the Commissions are not lost but are carried over to the next month and will be paid when the aggregate amount in Commissions due equals or exceeds $50.00. If the amount collected from Merchants does not equal or exceed the amounts due from Company, Company will be responsible to reimburse NMI for the shortfall.

4.2.2 Company Debiting. If the Company Debiting option is selected, NMI will debit fees directly from Company, pursuant to the General Terms, for Services provided to Company’s Merchants, in the amounts set forth in the Fee Schedule/Proposal. NMI will typically debit Company on the first business day of each month for all amounts owing under the Agreement; however, if fees accrue to more than $50.00 at any time in any given month, NMI may debit Company the full amount due on a more frequent basis at NMI’s discretion. Company authorizes NMI to initiate transaction entries to Company’s depositories account. This authority will remain in full force and effect until NMI receives written notification from Company of its request for termination in such time as to afford NMI and Company’s depository institution a reasonable opportunity to acknowledge and respond to the request. Company shall owe the amounts invoiced regardless of whether Company is able to collect its fees from its Merchants.

4.3 Default Fee Increases. Fees applicable to Merchants and sub-affiliates may be automatically adjusted from time to time by a proportion equal to the percentage fee increase applied by NMI to Company pursuant to the Agreement. The price increase described herein is controlled and set as the “Default” option in the Partner Portal. The Company shall, in its sole discretion, set the fees applied to its Merchants and sub-affiliates and may opt out of the Default setting by contacting support@nmi.com or changing their pricing to customers within the portal.

5. Merchant Agreements / Sublicenses

5.1 Company may sub-license the rights granted to it to Merchants under a Merchant Agreement between Company and the Merchant, provided that Company shall ensure that the terms of any sub-license are: (a) enforceable and in writing; (b) provide at least the same level of protection to NMI as set out in the Agreement; and (c) the Merchants shall not have the right to sub-license its rights.

5.2 Company shall promptly provide NMI with a copy of the Merchant Agreement on request.

5.3 Company shall be liable for all acts and omissions of all Merchants and shall indemnify NMI against all losses, liabilities, costs, expenses, and damages incurred or suffered by NMI, or for which NMI may become liable, arising out of any act or omission of any Merchant.

6. Transaction Processing

6.1 NMI shall receive Transactions from the Merchant Device and send the required data related to the Transaction to an Acquirer. NMI shall then receive the response from the Acquirer and send the related Authorization or Failure to the Merchant Device.

7. Merchant Portal

7.1 NMI shall provide a website that allows Merchants to access Transaction history and perform the following basic functions: (a) generate and download reports; (b) perform refunds; and (c) process ad hoc card-not-present authorizations and refunds.

8. Terminal Management System (TMS)

8.1 In some instances, NMI may provide a terminal management system that enables the Merchant Device to download configuration data and firmware for the Merchant Device (and any associated terminal).

8.2 NMI is not responsible for and shall have no liability to Company in respect of any and all information, data and/or updates provided by a third party and sent through the TMS.

9. Software Development Kit

9.1 If so indicated on the Proposal, NMI shall provide Company a software development kit (“SDK“), which shall comprise of the:

9.1.1 software development kit; and

9.1.2 associated documentation (which may include technical specifications, files format documentation and API information).

9.2 Subject to the terms of the Agreement, NMI hereby grants to Company a non-exclusive and non-transferable license for the Term, to use the SDK in accordance with the written materials provided by NMI (including any technical specifications, file format documentation and API information), strictly as follows to:

9.2.1 develop Company Interface and make a limited and reasonable number of copies of the SDK for such purpose; and

9.2.2 subject to this Section, use the SDK to the extent that such is incorporated into Company Interface to provide services to Merchants.

9.3 The provisions set out in this Section shall apply where NMI provides the SDK to Company.

9.4 Company acknowledges and accepts that NMI is not responsible for and shall have no liability to Company (or any Merchant) for:

9.4.1 Merchant Devices (including all software, firmware and operating systems located on the Merchant Device and its processing capacity, and including any certifications and configurations (including online PIN key loading arrangements where applicable));

9.4.2 any change (including updates and new releases) to Merchant Devices (including where such change results in the SDK becoming unusable (in full or in part));

9.4.3 Merchant Device’s ability to connect to public networks and/or Bluetooth (as applicable);

9.4.4 availability of any public network, internet, or wireless and mobile technologies (including where unavailability results in failure to send communications related or connected to the SDK); and/or

9.4.5 functions connected or related to the processing of transactions (including transaction authorization) provided by acquiring banks, payment processors or payment facilitators.

9.5 For the purposes of this Section, Company shall be permitted to upload Company Interface to applicable App Stores.

10. SECOND LINE MERCHANT SUPPORT

10.1 The following definitions shall apply in this Section:

First Line Merchant Support Team	Company’s personnel (or a third party on behalf of Company) providing the first line support, assistance, and guidance to Merchants.
Respond / Response	an acknowledgement by email or telephone of a Support Request.
Support Request	a valid request for support made in accordance with this Section.

10.2 NMI shall provide second line support to the First Line Merchant Support Team on issues relating to the Merchant’s use of the Services reported to NMI in accordance with Section. Company acknowledges and accepts that such second line merchant support shall not include support:

10.2.1 provided by NMI directly to Merchant(s) (save where NMI (in its sole) discretion requests the same);

10.2.2 where the First Line Merchant Support Team has not used every effort to resolve the issue;

10.2.3 where the First Line Merchant Support Team has not undertaken a reasonable level of diagnosis and reasonable steps to resolve the issue; and

10.2.4 on issues not directly related to the Services (including support on the Merchant Device and public networks).

10.3 Company is responsible for providing first line support, assistance, and guidance to Merchants and not NMI.

10.4 Company may make a request for support in accordance with NMI’s procedures, as may be modified from time to time.

11. MERCHANT BOARDING AND SET UP

11.1 This Section will apply in cases where boarding is provided.

11.2 Company must submit boarding requests in accordance with the merchant boarding procedure established by NMI from time to time.

11.3 Company will assist Merchants in completing all documentation required for use of the Services.

11.4 In addition to the fees set forth on the Fee Schedule, where Company requests NMI assistance with the boarding process, NMI will charge to Company and Company will pay to NMI all reasonably incurred costs and expenses (including employee time).

11.5 Company acknowledges and accepts that it is solely responsible for ensuring that all information and data provided in the boarding and set-up process is complete and accurate, and for the provision of the merchant identification and Acquirer TIDs (or equivalent) to NMI. NMI will have no responsibility for any incorrect, inaccurate, or incomplete data provided by Company or any other third party in the boarding and set-up process.

11.6 NMI is not responsible for and shall have no liability to Company in respect of any and all information, data and/or updates provided by a third party and sent through the Services.

11.7 Partner Portal Boarding. If the Proposal includes Partner Portal boarding, the following terms apply.

11.7.1 Company acknowledges and accepts that the Partner Portal boarding method is only recommended by NMI for low volume boarding (under 20 users/month or for the purposes of a limited pilot)).

11.7.2 Company acknowledges and accepts that Partner Portal boarding shall not include:

11.7.2.1 verification by NMI of any Merchant information submitted in the boarding process;

11.7.2.2 test transactions.

11.8 API Boarding. If the Proposal includes API boarding, the following terms apply:

11.8.1 API boarding shall provide Company with a web service interface or application programming interface that allows access to Partner Portal for boarding purposes.

11.8.2 Company acknowledges and accepts that API boarding shall not include:

11.8.2.1 verification by NMI of any Merchant User information submitted in the boarding process; or

11.8.2.2 test transactions.

Gateway Services — Card Testing Prevention Opt Out Request Form

If Company Personnel has requested to opt out of NMI’s Card Testing Prevention Tool, Company agrees the following will apply:

Company requests that NMI deactivate the Card Testing Prevention Tool on Company’s and/or its agent’s or Merchant’s account. Company understands that by opting-out of the Card Testing Prevention Tool, Company and its agents and Merchants will no longer have access to an additional layer of security that may prevent a card testing attack.

For the avoidance of doubt, NMI is not responsible for any fraudulent activity, including but not limited to card testing on any Company or its agents’ or Merchants’ accounts. NMI shall still maintain the right to restrict or otherwise suspend access to the Services, if necessary to comply with all Laws necessary to protect the Services.

Company represents and warrants that it is authorized to opt-out of the Card Testing Prevention Tool for Company and its agents and Merchants. Company agrees to assume any and all risk, loss and liability incurred by Company or its agents and Merchants on whose behalf Company is authorizing NMI to opt-out of the Card Testing Prevention Tool.

Notwithstanding anything to the contrary contained in any agreement between Company and NMI or any agreement NMI has with any Merchant or agent, to the maximum extent permitted by law and in addition to any indemnification obligations Company may otherwise have, Company will defend, indemnify and hold NMI and any of its officers, directors, agents and employees harmless from and against any third party claims, actions, proceedings, suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses including reasonable costs and attorneys’ fees and other legal expenses incurred by NMI arising out of or relating to Company opting-out Company or its agents and Merchants from the Card Testing Prevention Tool. For the avoidance of doubt, any Company direct charges, third party charges, fines, fees or other expenses incurred in connection with a card testing attack or any other unauthorized or fraudulent card activity which could have been prevented by utilizing the Card Testing Prevention Tool, whether billed directly by such third party or through NMI shall be the sole responsibility of Company and any such Merchant or agent. This provision shall not be subject to a limitation of liability. If there is any inconsistency between any rights NMI may be entitled to under any existing agreement and this Opt Out Form, the terms of this Opt Out Form shall control.

I, the undersigned, hereby request to opt out of the Card Testing Prevention Tool provided by NMI. I understand that by opting out, I may lose access to certain features or services. I acknowledge that this action is voluntary and that I have read and understood the terms and conditions related to opting out.

Company:
Signature:
Name:
Title:
Date:

Gateway Services — Special Request Terms

1. Unmatched Credit Acknowledgment

In the event that Company requests NMI to process credit transactions that do not correspond to identified sales transactions in the same amount and at the same merchant (“Unmatched Credits“), these Unmatched Credit terms shall apply. Company understands that initiating Unmatched Credits removes the verification check that otherwise would be present if such credit transaction could be matched to a sales transaction, and that NMI advises not to initiate such Unmatched Credit transactions. Therefore, Company agrees to assume all risk of loss on and liability arising out of Unmatched Credits incurred by NMI or by Company or by any Merchant on whose behalf Company is authorizing NMI to initiate Unmatched Credits. Company represents and warrants that it is authorized by Merchant to initiate Unmatched Credits for the subject Merchant. Notwithstanding anything to the contrary contained in any agreement Company has or any agreement any Merchant has with NMI, to the maximum extent permitted by law and in addition to any indemnity obligations Company may otherwise have under the Agreement or otherwise, Company will completely defend, hold harmless and indemnify NMI and its employees and agents from and against any claim, threat of claim, and Losses incurred by NMI or brought by any third party against NMI arising out of any Unmatched Credit initiated by Company or on Company’s behalf. The obligations of Company under this Section shall not be subject to any limitation of liability. If there is any inconsistency between these Unmatched Credits terms and the terms of any agreement Company has entered into, these Unmatched Credits terms will prevail.

2. Unmasked Sensitive Processor Information Acknowledgment

In the event Company requests NMI to unmask certain sensitive processor information, including but not limited to merchant identification numbers or related merchant identifying information, terminal identification numbers, and passwords (collectively, “Processor Information“), that NMI routinely truncates in order to protect such information from fraudulent use, Company understands that (i) these unmasked Processor Information terms shall apply and (ii) revealing Processor Information in the clear removes the protection afforded such information that otherwise would be present if Processor Information was masked, and that NMI advises not to unmask such Processor Information. Therefore, Company agrees to assume all risk of loss on and liability incurred by it or by any Merchant on whose behalf it is requesting NMI unmask Processor Information. Company represents and warrants that it is authorized to make such request for the subject Merchant. Notwithstanding anything to the contrary contained in any agreement Company has or any agreement any Merchant has with NMI, to the maximum extent permitted by law and in addition to any indemnity obligations Company may otherwise have, Company will defend, hold harmless and indemnify NMI and its employees and agents from and against any claim, threat of claim, and Losses incurred by NMI or brought by any third party against NMI arising out of complying with Company’s request to unmask Processor Information. The previous sentence shall not be subject to any limitation of liability. If there is any inconsistency between these unmasked Processor Information terms and the terms of any agreement Company has entered into, these unmasked Processor Information terms will prevail.

Gateway Services – Paid Support Service Terms

Company may offer Paid Support Services, as indicated on the Proposal, which are subject to this Agreement.

Processing Service Terms (Partner)

1. Definitions; Interpretation

1.1. Processing Services. If Company is signing up to market, promote, and offer NMI Payments processing / acquiring services to Merchants, these Processing Service Terms will apply to Company’s Agreement, in addition to the General Terms and Conditions, the Partner Terms, and the Proposal(s) (and any schedules or other documents referenced in any of the foregoing). As applicable, the Processor Services described in these Processing Service Terms will be integrated and provided together with NMI’s gateway or other Services, which Services will be subject to separate Service Terms.

1.2. NMI Affiliate. Anovia Payments, LLC d/b/a NMI Payments is the NMI Affiliate providing the Processing Services under these Processing Service Terms, and for purposes of these Processing Service Terms, all references to “NMI” will refer to such NMI Affiliate only.

1.3. Additional Definitions. Capitalized terms used but not defined in these Service Terms will have the meanings given to them in the General Terms and Conditions, the Partner Terms, or elsewhere in the Agreement. In addition, the following definitions will apply to these Service Terms only.

“Processing Agreement” means an agreement between a Merchant and the Processor (and/or its sponsoring financial institution or other applicable Third Party Service Provider) pursuant to which the Processor (and/or the Third Party Service Provider) provides the Merchant with a merchant processing account and payment processing services. The Processing Agreement is available at NMI Payments Merchant Processing Agreement or such other location as provided by NMI or the Processor/Third Party Service Provider, as the same may be amended or updated from time to time. In the event Company is signing up for Gateway Services in addition to Processing Services, the Processing Agreement shall be the following NMI Payments Merchant Processing and Gateway Agreement.

“Processor” means the applicable Third Party Service Provider (which may be an NMI Affiliate), and/or its sponsoring financial institution, as applicable, providing the Processor Services to Merchants pursuant to these Processing Service Terms and a Processing Agreement. NMI may update the Processor with written notice to Company or the applicable Merchants. As of the date of these Service Terms, the designated Processor is Anovia Payments, LLC d/b/a NMI Payments.

“Processor Services” means the payment processing services provided by the Processor to Merchants pursuant to a Processing Agreement. The Processor Services are integrated with and accessible through the Services.

2. Marketing Activities

2.1. Merchant Enrollment. Prior to allowing any prospective Merchant to access or use the Processor Services, Company will ensure that each such Merchant has completed NMI’s registration process and has executed a valid Merchant Agreement and Processor Agreement, as applicable. For the avoidance of doubt, a Merchant Agreement is only required if Merchant is receiving one (or more) of NMI’s gateway offerings, in addition to Processing Services. Company must use and present to Merchants the forms of Merchant Agreement and Processor Agreement as communicated to Company by NMI (which forms are subject to change from time to time in NMI’s sole discretion with written notice to Company). Company may not make any changes to the Merchant Agreements or Processor Agreements without NMI’s prior written approval.

2.2. Merchant Review and Approval. NMI and its sponsoring financial institution will review prospective Merchants submitted by Company and may accept or reject a prospective Merchant in their sole and absolute discretion. Company agrees to use best efforts to promptly collect any information reasonably requested by NMI for purposes including, but not limited to, underwriting Merchants, researching transactions, or resolving chargebacks. Company will not attempt to onboard a Merchant located outside of supported territories or that operates in a prohibited industry as listed in the Processor Agreement or on any other such list promulgated by the Processor or the Payment Networks. Company will notify NMI of any material changes to Company’s business, including the types of services it provides, the kinds of payments it processes, the types of Merchants it serves, or Company’s financial stability or solvency. NMI may, in its sole discretion, modify or terminate any Merchant Agreement or Processor Agreement in accordance with the terms of such Merchant Agreement or Processor Agreement.

2.3. Merchant Agreements. For the purposes of these Partner Terms, the Merchant Agreement will be between the Merchant and NMI only. Company will not be a party to the Merchant Agreement. The Merchant Agreement will include the provision of one (or more) of NMI’s gateway offerings and will require Merchant to also enter into a Processor Agreement with NMI and its sponsoring financial institution. Notwithstanding any other provision of the Agreement, NMI may assign any Merchant Agreement to any third party designated by NMI, and may cause the assignment of any Processing Agreement to NMI or to any third party designated by NMI, all in NMI’s sole discretion, without consent from or prior notice to Company.

2.4. Merchant Consents. Company represents that it has obtained all required consents from Merchants to share Merchant information and data with NMI and its sponsoring financial institution and that such consent allows NMI and its sponsoring financial institution to share such information with Company and third parties in connection with the provision of the Services and Processor Services. Company shall enter into an agreement with each Merchant that (a) accurately explains the services offered, including the role of all parties; (b) clearly and accurately describes all fees that Company is charging; (c) allows relevant Merchant data and payment method data to be shared with NMI and its sponsoring financial institution, as well as exported to Company or Company’s designee at any time; and (d) requires Merchant to agree to the Processing Agreement, including the right for NMI to amend the terms at any time on notice.

2.5. Processor Integration. The Services are integrated with the Processor Services provided by NMI and are used to facilitate Merchant transactions processed by NMI and its sponsoring financial institution. Accordingly, use of the Services requires that Merchants have a current Processing Agreement and a valid merchant account with Processor. Processor will provide transaction processing to Merchants in accordance with such Processing Agreement. Processor will perform Merchant onboarding, underwriting, and ongoing monitoring on behalf of Company, and NMI has no control over whether Processor accepts or rejects a prospective Merchant solicited by Company. NMI is not the provider of any Processor Services and is not a party to any Processing Agreement or any other agreement between any Merchant and Processor. Company acknowledges and agrees that Processor may, in its sole discretion, suspend or terminate any Merchant at any time, upon notice, if: (a) the Merchant or Company has violated (or if continuing to process transactions would violate) the Agreement, the Processor Agreement, applicable law, Rules, or other program standards; (b) the Merchant or Merchant’s transactions create increased reputational or unreasonable financial risk for Processor; or (c) a Payment Network or sponsoring bank terminates or asks Processor to terminate the Merchant; Processor’s exercise of any of these rights will be without recourse to Processor or NMI. Company further acknowledges and agrees that as a necessary part of Processor’s risk monitoring services, Processor retains the right, in its sole discretion, to limit transaction size and types, limit Merchant processing volume or ability to process transactions, hold payments or payouts for manual review, or hold Merchant payouts in reserve.

2.6. Updates. Company agrees to make all reasonably required updates to the technical integration needed to resolve security issues, decrease financial risk, or comply with applicable law, Rules, or other program standards. NMI will use reasonable efforts to provide reasonable advance notice of any required integration updates (including without limitation involving integration with the Processor Services), but Company acknowledges that this may not be possible in all cases due to more immediate security, risk, compliance, or regulatory concerns.

3. Payment Terms

3.1. Commissions and Fees. Company appoints NMI (or such other third party designated by NMI) as its agents for the limited purpose of billing and collecting fees from Merchants in accordance with the Agreement (provided, however, that the parties expressly agree that no fiduciary relationship, partnership, or joint venture is created by this limited agency, and that Company and NMI remain at all times in an arm’s length commercial relationship). Processor (or another third party designated by NMI) will remit Commissions to Company on a monthly basis (on or before the end of each subsequent month) with respect to prior month’s activity, after netting fees and other amounts charged by NMI (as set forth on the Fee Schedule), which Processor will remit to NMI. Commissions will be based on net revenues actually received and retained by NMI attributable to Merchants and NMI will have no obligation to pay any Commissions if NMI has not received its corresponding revenue from Processor. NMI may amend the Fee Schedule upon thirty (30) days’ notice to Merchant, provided that fees imposed by the Payment Networks and other third parties and passed through to Company or Merchants may be updated at any time without prior notice. NMI will use reasonable efforts to provide written notice of changes to third-party fees but prior notice may not always be possible. Without limiting the foregoing, Company understands and agrees that certain risk management fees may be updated by NMI at any time to account for increased costs or exposure based on the actual performance of one or more of Company’s Merchants. Changes in such risk management fees will be applied prospectively from when the change is implemented, and not retrospectively. The obligation to pay Commissions will cease immediately if Company: (a) violates the non-solicitation obligations under the Agreement; (b) fails to remain in compliance with all terms and conditions of the Agreement, the Rules, the policies, standards or procedures of NMI or applicable law or regulation; or (c) violates any confidentiality or intellectual property rights of NMI protected by the Agreement.

3.2. Merchant Fees. Merchant fees will be set by NMI in consultation with Company. Company may request the rates to be charged to Merchants, but NMI reserves the right to make adjustments to such pricing in its sole discretion. NMI also reserves the right to subsequently modify Merchant pricing from time to time in its sole discretion. In such case, NMI will use reasonable efforts to give Company advance notification of such pricing change (and the Merchant will be notified as provided in the applicable Merchant Agreement). However, Company will not be permitted to reprice a Merchant (up or down) once pricing is set for such Merchant, without NMI’s express written consent.

3.3. Payment Terms. NMI will net amounts owed to it under the Agreement from payment transaction amounts owed to Merchants under the Processing Agreement, and NMI will remit amounts owed to it under this Agreement. Company authorizes NMI and/or its designees to initiate Automated Clearing House (“ACH“) debits and/or credits to and from Company’s depository bank account as designated by Company for payment and collection of all Commissions, fees, and other amounts due under the Agreement. NMI reserves the right to offset from the Commissions or any funds credited to or owing to Company: (a) any amounts owed by Company to NMI; and (b) any revenue paid to Company but that is uncollected from the Merchant. NMI will set off and deduct amounts owed to NMI from any amounts owed to Company under the Agreement. In the event that Company owes NMI more than NMI owes to Company in Commissions, Company authorizes NMI and/or its designees to collect all amounts owed via ACH.

ScanX Service Terms

1. Definitions; Interpretation

1.1 Additional Definitions. Capitalized terms used but not defined in these ScanX Service Terms will have the meanings given to them in the General Terms and Conditions, the Partner Terms, or elsewhere in the Agreement. In addition, the following definitions will apply to these Service Terms only.

“ScanX Platform” means the online proprietary platform hosted by ScanX and comprised of proprietary algorithms, software, and other technologies that allow Company to remotely integrate, distribute, digitally sign, and track documents.

“ScanX Services” or “Services” means either or both of the Subscription Services and/or Professional Services.

“ScanX Technology” means the ScanX Platform, Subscription Services, the Documentation and all ScanX and its Affiliate’s Intellectual Property Rights therein or associated therewith.

“Content” means text, images, documents, materials, and all other forms of data or communication.

“Company Content” means all Content made available by Company or its Users to ScanX for use in connection with the Services or generated by Company via use of the Services and includes, without limitation, all of Company’s contracts and agreements to be digitally signed in connection with the Subscription Service.

“Documentation” means any written documentation provided to Company by ScanX which are related to and describe any ScanX Services.

“NMI Content” means all Content made available by NMI to Company in connection with Company’s use of the Subscription Service.

“Professional Services” means those installation, set-up, integration, configuration, consulting, and/or training services to be provided by ScanX as may be specified in an applicable Proposal.

“Subscription Service” means the services offered through the ScanX Platform provided by ScanX as described in, and pursuant to, a Proposal, for the benefit of Company.

“Users” means each employee or contractor of Company who has been granted access to the Subscription Service with the right to publish documents, Company Content or access the “Agreement Workspace” portion of the Subscription Service.

1.2 NMI Affiliate. Agreement Express Inc. (“ScanX“) is the NMI Affiliate providing the ScanX Services under these ScanX Service Terms, and for the purposes of these ScanX Service Terms, references to “NMI” will refer to such NMI Affiliate only.

2. ScanX Services

2.1 ScanX Services. During the Term, NMI will provide to Company the ScanX Service, as set forth in the Proposal. Subject to the terms and conditions of this Agreement, SCANX hereby grants to Company while the Proposal is in effect, a non-sublicensable, non-transferable and non-exclusive right to access and use the Subscription Service(s). ScanX reserves all rights not expressly granted to Company hereunder.

2.2 Use of Subscription Services. The Subscription Services may only be used pursuant to these ScanX Service Terms. The license and permitted use terms with respect to the Subscription Services will be set forth in the applicable Proposal. NMI reserves all rights not expressly granted to Company under these ScanX Service Terms. NMI shall be free to use the ideas, concepts, techniques and know-how used and developed in connection with NMI’s offering of the Subscription Services.

2.3 Restrictions on Use. In addition to any restrictions set forth in the General Terms, Company further agrees that neither it, nor its employees, agents or contractors will: (a) use any of the ScanX Services in a manner that violates any applicable law or regulation; (b) decompile, reverse engineer, disassemble or otherwise reduce the ScanX Technology to a human perceivable form or permit any other party to do so; (c) copy, modify, adapt, translate, rent, lease, sublicense, loan, resell, distribute, time-share, or create and derivative work of the ScanX Technology; (d) permit works based on the ScanX Technology; (e) create derivative works based on the ScanX Technology; (f) copy, frame, or mirror any part of the NMI Content or Subscription Services, other than copying or framing on Company’s own intranets or otherwise for its own internal business purposes as specifically authorized by ScanX; or (g) use, provide access to, adapt, copy or otherwise exploit any ScanX Technology or ScanX Confidential Information (including any features, functions or graphics) in any way that would replace or obviate Company’s need for the ScanX products or services, or directly or indirectly compete with ScanX products and services. Company also may not permit or enable any other Person to do any of the foregoing. No Person other than Company and its Users may use or access the Subscription Services. All payments due NMI are based on the use of the applicable Services solely by Company and the authorized Users.

3. Proprietary Rights

3.1 Proprietary Rights. As between the NMI and Company, (a) each Party retains ownership to its Confidential Information, (b) NMI shall exclusively own all right, title and interest in and to the ScanX Technology (and all of the underlying technology, software and analytics) and NMI Content, any models, methods, algorithms, discoveries, inventions, modifications, customizations, derivatives, materials, ideas and other work product that is conceived, originated or prepared in connection with the Services, ScanX Technology or related to the Agreement, and all related Intellectual Property Rights, and (c) Company shall exclusively own all right, title and interest in and to any Company Content provided by Company. Company shall not remove or obscure any trademarks, copyright notices or other notices contained on materials accessed through the Subscription Services or ScanX Technology.

3.4 Right to Use of Company Content. Company hereby grants to NMI a worldwide, non-exclusive, nontransferable (except as expressly provided herein), fully-paid license and right to use the Company Content to provide, improve or extend the ScanX Technology and Subscription Services and other Services, including the right to perform research and development activities and to develop, provide and improve the Subscription Services and to offer additional services if allowed by Company and applicable law.

4. Limited Warranties

4.1 Subscription Services Warranties. ScanX warrants that while any Proposal is in effect for the Subscription Service, the Subscription Service will conform, in all material respects, to its Documentation from and after the Contract Effective Date. ScanX does not warrant that it will be able to correct all reported defects or that use of the Subscription Service will be uninterrupted or error free. ScanX makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, Customer’s sole and exclusive remedy and the entire liability of ScanX, in sole discretion by ScanX, either: (a) correction of the defect or error that caused the breach of warranty; (b) replacement of the nonconforming item of the Subscription Service; or (c) in the event ScanX reasonably determines that it is unable to cure such breach, termination of Customer’s right to use the Subscription Service and refund to Customer any prepaid unused fees paid for the Subscription Service (if any).

4.2 Professional Services Warranties. All warranties applicable to the Professional Services will be set forth in the applicable Proposal.

Merchant Central Service Terms

1. Definitions; Interpretation

1.1. Definitions. Capitalized terms used but not defined in these Merchant Central Service Terms will have the meanings given to them in the General Terms and Conditions, the Partner Terms, or elsewhere in the Agreement. In addition, the following definitions will apply to these Merchant Central Service Terms only.

“Account” means a merchant or other business that wishes to or has agreed to procure Account Services or Processor Services as a result of the direct or indirect solicitation by Company or any of its Users.

“Account Agreement” shall mean an agreement between any of Acquiring Bank, Processor, Gateway, and Company, on the one hand, and Account on the other hand, pursuant to which the Account receives Account Services.

“Account Portal” is a means of accessing the Service supplied by NMI and available to certain Accounts of the Company as per the terms of the Agreement and a Proposal.

“Account Services” means services supplied to Merchants by Processor, Acquiring Bank, Gateway, or Company, such as, for example purposes only, payment processing services for payment card transactions.

“Acquiring Bank” means any financial institution acting as part of a Payment Network and sponsor of Company or Company’s Affiliates.

“Company Data” means any and all electronic data or information submitted or transferred by Company, a User, an Acquiring Bank or a Processor, to NMI through the use of the Services, including, as it relates to an Account or any Account Principal/Customer, name, address, date of birth, social security number, driver’s license number, account number, credit or debit card number, or a personal identification number or password. Company Dialer Data is, without limitation, Company Data. Company Data does not include data that has been deleted from the Services or any data or libraries used by NMI to operate the Services or that is otherwise provided to NMI other than by Company or its Users or Processor in relation to Company. For the avoidance of doubt, Company Data is confidential and proprietary information of Company.

“Company Dialer Data” means data and other information made available to NMI through the use of the Dialer Services under these Merchant Central Service Terms, including call records, audio recordings, recording transcriptions, SMS records, and SMS message content.

“Company System” means the servers or computing systems owned, operated or controlled by the Company or otherwise used by the Company, its Affiliates, Users or Accounts in conjunction with the business of the Company.

“Fees” shall mean those fees and expenses for which Company is liable to pay NMI in consideration of the Services for itself and all its Users. Fees are defined herein and are posted from time to time on NMI’s website. In the event of any inconsistency between the Fees set out herein and those posted on the website, the latter shall prevail. All Fees charged on a per-Account basis are charged only on Active Accounts. All Fees indicated are exclusive of applicable taxes.

“Merchant Central Instance” means the NMI-hosted and managed instance of the Services supplied to Company under these Merchant Central Service Terms through which Company may access the Services.

“Users” means individuals or entities who: (i) are authorized by Company to use the Services; (ii) for whom Subscriptions have been purchased by Company; (iii) who have agreed to the terms hereof; and who have been supplied user identifications and passwords for the Services by Company. Users may include, at the discretion of Company, Company employees, consultants, contractors and agents, Accounts; or other third parties with which Company transacts business for which the Services are a suitable complement. Company has the right to initiate and remove access to the Services for each of its Users. As between Company and each of its Users, Company shall dictate which of the Services herein each User may be entitled to use at any given time, if any.

“Subscription” shall mean the entitlement of an individual User to use the Services for a Term specified on the Proposal.

1.2. NMI Affiliate. Integrated Reporting is Simple LLC (“Merchant Central“) is the NMI Affiliate providing the Services under these Merchant Central Service Terms, and for the purposes of these Merchant Central Service Terms, references to “NMI” will refer to such NMI Affiliate only.

2. Service Terms

2.1 Services. NMI shall make the Services available to Company and Users selected by Company pursuant to these Merchant Central Service Terms and applicable Proposal(s). Services are provided subject to, without limitation (the “Company Conditions“): (i) payment by Company of all applicable Fees; (ii) adherence of the Company to the terms of these Merchant Central Service Terms; (ii) no prohibition on NMI providing the Services in respect of Company, its Processor, its Acquiring Bank or Payment Networks; (iii) adherence of the Company to the terms and conditions of the Processor Site; and (iv) adherence of the Company to the terms of the Processor Agreement. Company agrees that the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by NMI regarding future functionality or features or the Services. NMI reserves the right to modify the Services by notice through the Services or by email to the Company. NMI also reserves the right to cease providing the Services on at least thirty (30) days’ notice through the Services or by email to the Company. Company will have the right to activate or deactivate the Services in respect of any given User at any time, subject to the terms of these Merchant Central Service Terms.

2.1.1 Submitting Account Applications or Updating Account Information. To use the Services, there is required submission of Account information to an Acquiring Bank, Processor, and/or Gateway through NMI, which is a multi-stage process that requires the close attention of the Company and each User so as not to submit false or erroneous information to the Acquiring Bank, and/or Processor, and/or Gateway. Whether in good faith or not, the submission of false, erroneous or misleading information on an Account Application (defined below) or when updating Account information could result in grave and irreparable damages to the Company under its Processor Agreement, the Rules or otherwise. Any and all mistakes or fraud in the submission of such information by Company or any User shall be the sole and exclusive responsibility of Company and Users. Company and Users shall indemnify and hold NMI harmless from and against any and all liability in respect of the foregoing.

2.2. TurboApp. If Company has elected to use TurboApp, then NMI shall allow Users to access, complete, inspect and modify certain Account information fields within electronic facsimiles of Account Applications presented to the User through the Services. In so doing, the Company covenants that all of its Users shall input only Account information that is complete and accurate and that the applicable Acquiring Bank and, as applicable, Processor permits to be incorporated into the Services. NMI shall assume no liability in respect of any Account Information that is incorrect, either through Company, User or Processor error or otherwise, all of which information Company undertakes to scrutinize and review prior to submission to the Processor through TurboApp or otherwise. Without limitation to any of the other obligations of the Company and each User under these Merchant Central Service Terms, when a User clicks “Submit Application” in relation to given Account Information for an Account Application for use of TurboApp it shall be required, at every instance, to agree with additional terms, which shall form part of these Merchant Central Service Terms (the “User Submission Certification“).

2.2.1 Account Application Facsimile. As part of the setup of TurboApp, Company will be asked to assist in accepting or creating a facsimile of an account application (“Account Application“). Company hereby licenses to NMI the right to use the information, names and logos that it is instructed to include or that Company accepts to be included in the TurboApp and shall indemnify and hold NMI harmless for any claims by Processor, Acquiring Bank, Payment Networks or any other third party in respect of the use thereof within the Services for Company. Company assumes sole and exclusive responsibility for any discrepancies that may occur between the TurboApp Account Application and that which may be mandated by an Acquiring Bank and, as applicable, Processor.

2.2.3 Company Third Party Beneficiary of User Certification. The parties hereto agree that the Company is deemed to be a third party beneficiary in respect of each User Submission Certification. NMI shall, however, have no liability to Company, any User or any other third party in respect of any dispute between the two as to a User Submission Certification or otherwise and Company shall indemnify and hold NMI harmless from and against any claims related to a User Submission Certification.

2.2.4 Keeping Account Pricing Up to Date. From time to time, Processors and other third parties involved in Account Agreements and Processor Services, will increase or otherwise amend the pricing applicable to Accounts and Company for their services (each a “Account Price Change“). Company acknowledges and agrees that: (i) once a given Account Application has been submitted through TurboApp, the only means by which to implement an Account Price Change for the Account is for the Company to instruct the Processor/Acquiring Bank directly to make such change; and (ii) if the Company fails to implement an Account Price Change through direct communication with its Processor (and not through NMI) the change will not necessarily be implemented for Accounts and the Company may be liable to pay for the change byway of a direct and potentially material reduction in its compensation under a Processor Agreement. NMI does not provide any Account Price Change functionality.

2.2.5 E-Sign Service. The U.S. Federal Electronic Signatures in Global and National Commerce Act (“E-Sign Act“), provides that, subject to certain conditions, electronically executed documents are legally binding in the same manner as are hard copy documents executed by hand signature. Subject to payment of the applicable Fees, NMI shall provide the E-Sign Service (“E-Sign Service“) to Company. Subject to the parameters of the E-Sign Service, the E-Sign Service allows Company to facilitate in the presentation of its documents to third parties, such as, for example, Accounts, collect electronic signatures and create electronic records (each, an “Company Electronic Records“).

2.2.6 Company shall assume sole and exclusive responsibility for the content of each Company Electronic Record. For example, if Company wishes to create a contract using the E-Sign Service, Company shall provide the whole content of the contract as well as all fields that the parties to the contract are required to complete (each a “Record Field“).

2.2.7 In the event that Company wishes to ask third parties to enter sensitive or confidential personal information into an Company Electronic Record, such as tax ID numbers, EIN numbers, SSN numbers, bank account or routing numbers, then Company must use only the secure field option within the E-Sign Service for such records. Company shall ensure that it shall use the E-Sign Service in a manner that is consistent with the Company’s privacy policy.

2.2.8 When Company has completed an Company Electronic Record form with all disclosure, terms and Record Fields, the Company will be able to grant third parties access to the Company Electronic Record and obtain signatures on it through the E-Sign Service.

2.2.9 NMI makes no representation and assumes no liability for the legal effectiveness of any Company Electronic Record or related signature, all of which is the exclusive responsibility of the Company. NMI recommends that the Company consult legal counsel if it wishes to use the E-Sign Service to create legally binding agreements, as the enforceability of such agreements is the sole and exclusive responsibility of the Company and not NMI.

2.2.10 As and when the Company makes Company Electronic Records available for signature by third parties, such third parties will be presented with disclosure that applies to the E-Sign Services, which disclosure is incorporated herein by reference.

2.2.11 The E-Sign Service may require the use of third party applications or services, including those made available by Adobe or other third parties, and may be subject to additional terms and conditions established by the applicable third party provider. Company must agree to such terms and conditions to use those third party applications or services, and NMI will have no obligation with regard to, and makes no representation or warranty related to, those third party applications or services or any third party terms, conditions, or agreements.

2.2.12 After an Company Electronic Record is signed through the E-Sign Service, depending on the preferences selected by the Company, an electronic copy of the record may be sent by email to the Company or the third party or may be available for access through the E-Sign Service on the Site. Company is required to download and store on Company Systems copies of any and all Company Electronic Records, both signed and unsigned.

2.2.13 Company shall not use the E-Sign Services nor shall it permit any User to use them to create contracts other than with the full and enlightened consent of all parties thereto and in a manner consistent with the Company Privacy Policy.

2.3. Dialer Services

2.3.1 Provision of Services. NMI will make the Dialer Services available to Company and to its Users in accordance with these Merchant Central Service Terms.

2.3.2 Company Dialer Data. Company Dialer Data shall be part of Company Data and shall be governed accordingly. Company shall use the Dialer Service in a manner that is consistent with the Company Privacy Policy.

2.3.3 Use of Dialer Services. If Company elects to purchase the Dialer Services, Company will be solely responsible for all use (whether or not authorized) of the Dialer Services under its Account, including for the quality and integrity of Company Dialer Data. Company is responsible for compliance of all its Users with the terms hereof including but not limited to those concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability. Company will promptly notify NMI if it becomes aware of any breach of the terms of these Merchant Central Service Terms that may affect NMI. Company will take all reasonable precautions to prevent unauthorized access to or use of the Dialer Services and notify NMI promptly of any such unauthorized access or use.

2.3.4 Restrictions. Except as expressly provided herein in respect of Users, Company will not transfer, resell, lease, license or otherwise make available the Dialer Services to third parties. In any event, the Company will not offer the Dialer Services on a standalone basis. Company will not use the Dialer Services to access or allow access to Emergency Services. Company will ensure that the Dialer Services provided hereunder are used in accordance with all Laws and third party rights, as well as the terms of these Merchant Central Service Terms, including NMI’s Acceptable Use Policy, set out below. Specifically, and without limitation, Company will ensure that NMI is entitled to use the Company Dialer Data as needed to provide the Dialer Services and will not use the Dialer Services in any manner that violates the Company Privacy Policy or any data protection statute, regulation, order or similar Law.

2.3.5 Limitations. The Dialer Services are deemed part of the Services and are subject to all the limitations of liability, restrictions and obligations applicable to the Services in the Agreement.

2.3.6 Dialer Acceptable Use Policy. This Dialer Services acceptable use policy (the “Dialer Acceptable Use Policy“) describes actions that NMI prohibits when any party uses the Dialer Services. The Dialer Services may not be used in any illegal, abusive or other manner that interferes with the business or activities of any other party. The following list gives examples of prohibited uses cases. Each item on the list below, and similar activities are also prohibited in respect of the Services, more generally. This list is provided by way of example and should not be considered exhaustive:

(a) Attempting to bypass or break any security mechanism on any of the Dialer Services or using the Dialer Services in any other manner that poses a security or service risk to NMI or any of its users.

(b) Testing or reverse-engineering the Dialer Services in order to find limitations, vulnerabilities or evade filtering capabilities.

(c) Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Dialer Services or any other conduct that adversely impacts the availability, reliability or stability of the Dialer Services.

(d) Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs.

(e) Using the Dialer Services in any manner that violates any applicable industry standards, Intellectual Property Right in the Services, any third party policies or requirements or other requirements that NMI may communicate to its users, including marketing association or any other accepted industry associations, carrier guidelines or other industry standards.

(f) Engaging in any unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spam laws and regulations including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.

(g) Using the Dialer Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls SMS or text messages, voice mail, or faxes.

(h) Using Dialer Services to engage in fraudulent activity with respect to third parties.

(i) Violating or facilitating the violation of any local or foreign Law, including Laws regarding the transmission of data or software.

(j) Taking any action to encourage or promote any activity prohibited under this Acceptable Use Policy.

(k) Transmitting any material that infringes the intellectual property rights or other rights of third parties.

(l) Transmitting any material that is libelous, defamatory, discriminatory or otherwise malicious or harmful to any person or entity.

(m) Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.

(n) Using the Dialer Service to carryout debt collection or other telemarketing activities that are illegal or aggressive.

2.4. Subscriptions. Unless otherwise specified in a Proposal, the Services are purchased by the Company as Subscriptions; (ii) additional Subscriptions may be added during the Subscription Term at the pricing of the current applicable tier that is specified in relation to the Subscriptions on the Proposal.

2.5. Company Security. Company shall maintain the security of the Company Site and Company Systems so that it is up to or exceeding industry customs and norms. Without limitation, Company shall obtain and maintain a Secure Sockets Layer certificate (“SSL Certificate”) in respect of the Company Site. Lack of an SSL Certificate or other shortfalls in Company security, as determined by NMI, shall be grounds for NMI to suspend Company and User access to the Services. Company shall monitor the use of the Services to verify that none of the Company Site or Company Systems are being used by any User or any third party to interfere in NMI system operations or to obtain any information or data to which they are not entitled.

2.6. Agency. Company hereby appoints NMI its lawful agent and attorney in fact for the purpose of retrieving Company Data from Processors and, through TurboApp, or otherwise, submitting Account Information to Processors, Acquiring Banks, and other third parties, each as specified through the Services. In so doing, NMI shall collect, store and disclose Company Data from and between Processor, Company and Users, as instructed by Company and Users through the Services. If requested by a Processor or other relevant third party, Company will confirm in writing the agency granted in this provision which agency shall be in force for the Term hereof. Company is wholly responsible for any wrongful disclosure of Company Data that occurs through the Services but on instructions from Company or a User. NMI shall use commercially reasonable efforts to not disclose Company Data other than as instructed through the Services.

2.7. Account Portal. If provided for in a Proposal, Company may grant its Accounts access to the Account Portal. The Account Portal will enable each Account that is designated as a User by Company to access certain Account Data related their individual Account and such other information as Company may wish to share with the Account and that the Service can accommodate. An Account that is granted access to the Account Portal shall be a User and shall be bound by all the terms of these Merchant Central Service Terms, as applicable to Users. NMI will follow Company instructions as to who can and cannot be a User in respect of a given Account, but Company assumes responsibility for errors in identifying and granting access to Account Users.

3. Use of Services

Company Compliance. Company shall: (i) be responsible for its own and its Users’ compliance with these Merchant Central Service Terms, without relieving the obligation of each User to honor the terms hereof; (ii) be solely responsible for the accuracy, quality, integrity and legality of Company Data and of the means by which Company acquired Company Data in so far as NMI is instructed to obtain, store or submit that data from or to Processors; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify NMI promptly of any such unauthorized access or use; (iv) use the Services only in accordance with the User Guide, published on the Site, and the Rules; and (v) regularly monitor for Account Price Changes and implement them directly with Processor and Accounts as per the procedures of the Processor and the Rules. Company shall assume exclusive responsibility for any and all information provided by the Company through the Services to Accounts.

4. Third Party Providers

4.1. Acquisition of Third-Party Products and Services. NMI may offer Third Party Services for sale under Proposals. Company use of any Third Party Services and implementation, customization and other consulting services, and any exchange of Company Data or other data between Company and any third-party provider, is solely between Company and the applicable third-party provider. NMI do not warrant or support any Third Party Services, whether or not they are designated by NMI as “certified” or otherwise, except as specified in a Proposal that has been expressly accepted by NMI.

4.2. Third Party Services and Company Data. If Company installs or enables Third Party Services for use with Services, Company acknowledges that NMI will be notified in writing prior to any development. NMI may allow providers of those Third Party Services to access Company Data as required for the interoperation of such Third Party Services with the Services. NMI shall not be responsible for any disclosure, modification or deletion of Company Data resulting from any such access by Third Party Services providers. The Services shall allow Company to restrict such access by restricting Users from installing or enabling such Third Party Services for use with the Services. The Service has been designed to perform optimally with current versions of Internet Explorer, Google Chrome, Safari and Mozilla Firefox; no commitments are made to upgrade the Services or make them compatible with any third party product or service. Use of the Service with any other Third Party Services or plug-ins may be functional but is not guaranteed in anyway by NMI.

4.3. Processor Compatibility. The Services may not always be compatible with Processor systems. Changes in Processor systems will interrupt the Services. It is recommended that despite your use of the Services, you maintain familiarity with Processor Company Data access sites so that you can retrieve necessary Company Data from Processors notwithstanding any interruption in the Services.

4.4. Relationship Between Company and User. The Rules require that any sales agent of an Company be a party to a written agreement with the Company. Company represents to NMI that is has executed written agent agreements with all of its Agents and that such agreements are valid and legally enforceable. Nothing in these Merchant Central Service Terms shall amend or interfere in any of the terms and conditions of agreements in place between Company and any User or any other third party. Without limitation, Company and each User shall indemnify and hold NMI harmless from and against any and all claims, losses or other liabilities arising in respect of any claim made against NMI that relates to a dispute between Company or any User and any other party. NMI reserves the right to immediately suspend the Services to Company in respect of which a claim is made against NMI that relates to any such dispute. For example, but without limitation, if a User seeks an injunction against NMI to gain access to the Services in relation to a dispute with Company or otherwise, NMI reserves the right to terminate this Agreement or suspend the Services to Company and all its Users. Without limitation, Company shall be responsible for NMI’s legal fees incurred in responding to any such injunction or related claim.

5. Fees and Payment Terms

5.1. Fees. In consideration of the Services, Company shall pay Fee, subject to the terms of the General Terms and Conditions of this Agreement. In addition and except as otherwise specified herein or in a Proposal: (i) Fees are based on Services purchased and not usage; (ii) payment obligations are non-cancelable and Fees paid are non-refundable, Fees are based on periods that begin on the Subscription Term start date and each billing anniversary thereof; and (iii) in the event that this Agreement is terminated prior to the end of the then current Term, other than for material and uncured default by NMI, Company shall remain liable for all Fees that would apply through to the end of the current Term. At the time of termination NMI will calculate the effective monthly average of the Fees that were paid to NMI by Company per month for the past 3 consecutive months and multiply the result by the remaining time left in Company’s Subscription Term which is the “Early Termination Fee” and will be paid by Company to NMI within thirty (30) days of Termination. Fees for the Dialer Services that are based on minutes used, are rounded to the nearest minute, for example, a call lasting ten (10) minutes and fifteen (15) seconds will be considered eleven (11) minutes of billable talk-time.

5.2. Start of Fees. NMI will perform an ACH debit to Company DDA for the amount specified as due on the Proposal and at the time specified on the Proposal.

5.3. Invoicing and Payment. NMI will provide invoices to Company based on the billing term specified on the Proposal. Company is responsible for maintaining complete and accurate billing and contact information with NMI. In the event of a dispute regarding any invoice, Company and NMI agree to work together in good faith to resolve such dispute. Company shall pay all taxes applicable to Fees.

6. Use of Data

6.1. Company Data. NMI is not responsible for: (i) the loss or destruction of any Company Data by any means other than by the gross negligence of NMI; (ii) breach of Company Data due, in whole or in part to an unsecure connection being used by Company, a User, Account, or Processor, or any of their authorized or unauthorized designees; or (iii) breach of Company Data on account of a breach in Company Systems. Company acknowledges that it is an industry best practice to backup Company Data onto its own secure Company Systems on a regular basis.

6.2. Aggregated Data. Notwithstanding the foregoing, NMI may collect, use and disclose aggregated data concerning Company, Users, their Accounts, Processors and other information processed through the Services (“Aggregated Data“) provided, however, that no such use shall or may be likely to facilitate in NMI or any third party being able to access any information concerning any individual Account or Agent of the Company or in any way damage the business of the Company. Aggregated Data will not permit any user thereof to identify the Company or its individual portfolio of Accounts with any individual Processor. Aggregated Data, if any, shall be the sole property of NMI.

6.3. Permitted Disclosures. Without limitation, Company shall indemnify NMI for any and all attorney fees and other costs associated with responding to any subpoena for Company Data. Notwithstanding any provision herein to the contrary, it shall not be a breach of the terms of this Agreement for NMI to delivery Company Data to a third party upon receipt by NMI of a subpoena for such Company Data, or if NMI reasonably believes that use or disclosure is necessary to protect the NMI’s rights and/or to comply with a judicial proceeding, court order, or legal process.

7. Representations, Warranties, and Covenants

7.1. Company represents and warrants that the Processor Agreement remains valid and in force; Company is not in breach of the Processor Agreement. Neither Company nor any User is in breach of any of the Company Conditions.

7.2. Company represents and warrants that performance by the Company under this Agreement does not constitute a breach of the Processor Agreement, Rules or Laws. Company has verified that none of the Processor Agreement or the terms and conditions applicable to the Processor Site prohibit or are inconsistent, in letter or spirit, with the use by the Company and its Users of the Services. NMI does not have access to the Processor Agreement and shall not verify the Processor Site terms and conditions to verify whether Company would be in breach thereof in using the Services. Company shall, from time to time, verify that it is not in breach of the Processor Agreement or the terms and conditions applicable to the Processor Site, as they may change from time to time. Nothing in this Agreement shall be deemed to amend or alter the terms of the Processor Agreement, nor shall this Agreement be deemed to be a part of or in any way associated with the Processor Agreement, Account Agreement or Agent Agreement. Company acknowledges that, as between Company and Processor, some Company Data may belong to the Processor and Company represents that Company performance hereunder does not breach the Company’s obligations in that regard.

7.3. Company shall not enter or cause to be entered any data or information into the Service unless and to the extent that Company has the right to such information. For example, but without limitation, Company will not use the Service to store data that is stolen or that has been otherwise misappropriated from a third party.

7.4. Company represents and warrants that Company’s performance of this Agreement will not violate any Law or any agreement or Rule to which that party may now be bound. Company will comply with the terms of this Agreement, with all applicable Rules.

7.5. Neither Company, nor its officers and directors are a party to any pending litigation that would have an impact on this Agreement and have never been fined or penalized by Payment Networks, NACHA or any other association in the credit, payments or banking industry.

7.6. Company represents and warrants that in entering into and performing under this Agreement, Company is doing so as a business enterprise and not as an individual consumer.

8. Limitations. In addition to any other limitations on liability or warranty disclaimers contained in elsewhere in the Agreement, the following terms will apply:

8.1. Dialer Service. Without limitation, NMI makes no representation as to the continued availability of the Dialer Service on an uninterrupted or error free basis. Without limitation, NMI shall not be liable for any interruptions in the Dialer Service that, or other Services, that: (i) are caused by factors outside of NMI’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of NMI or its direct hosting subcontractors (i.e beyond the point in the network where NMI maintains access and control over the Dialer Services); (ii) result from any actions or inactions of Company or any third party (other than NMI’s direct hosting subcontractor); (iii) result from applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within NMI’s direct control); or (iv) arise from NMI’s suspension and termination of Company’s right to use the Dialer Services in accordance with these Merchant Central Service Terms, (v) scheduled maintenance; or (vi) problems or issues related to alpha, beta or not otherwise generally available NMI features or products.

8.2. Legal Enforceability Disclaimer. WITHOUT LIMITATION, NMI ASSUMES NO LIABILITY FOR THE LACK OF LEGAL ENFORCEABILITY OF ANY AGREEMENT FORMED OR THAT COMPANY ATTEMPTS TO FORM THROUGH THE SERVICES OR ANY PART THEREOF SUCH AS TURBOAPP, E-SIGNATURE SERVICES OR DIALER SERVICES.

9. Data Transfer. If the Company wishes to have its data exported from NMI, it must give notice to NMI of no less than twenty (20) days prior to termination of the applicable Proposal. Company will provide to NMI with express written instructions (“Deconversion Instructions“) as to what Company Data the Company wishes to export prior to termination (such data being the “Deconversion Data“). Deconversion Data may contain only those elements of Company Data that are present in the Services on receipt by NMI of the Deconversion Instructions. NMI shall provide Company with access to a copy of the Deconversion Data in a reasonably useful format, as determined by NMI in its sole but reasonable discretion until 11:59pm on the last day of the Subscription Term. ON THE EXPIRATION OF THE SUBSCRIPTION TERM, NMI SHALL IRRETRIEVABLY DELETE DECONVERSION DATA AND COMPANY DATA THAT ARE IN ITS POSSESSION OR CONTROL. Company may, however, at its discretion, retain a record of Company contact information, any part of the Agreement, including the Proposal(s), correspondence with NMI under these Merchant Central Service Terms and Fees paid or owing hereunder.

Money Movement Service Terms

1. Definitions; Interpretation

1.1. Money Movement Services. If Company has selected Money Movement Services within a Proposal, these Money Movement Service Terms (“Money Movement Service Terms“) will apply in addition to the General Terms and Conditions, the Partner Terms, the Proposal(s), and any other terms and conditions set forth in the Agreement. The specific Money Movement Services made available to Company, together with the applicable fees, monthly minimums, transaction limits, terms, and optional features, are as selected and set forth in the applicable Proposal.

1.2. NMI Affiliate. Dwolla, Inc. is the NMI Affiliate providing the Money Movement Services under these Money Movement Service Terms, and for the purposes of these Money Movement Service Terms, references to “NMI” will refer to such NMI Affiliate only.

1.3. Incorporated Agreements. To use the Money Movement Services, Company must accept the Money Movement Account Terms of Service (available at https://www.dwolla.com/legal/dwolla-account-terms-of-service) and, if applicable, the Money Movement Open Banking Services Agreement (available at https://www.dwolla.com/legal/open-banking-services-agreement) (together the “Money Movement Agreements“), each of which is incorporated herein by reference.

1.4. Additional Definitions. Capitalized terms used but not defined in these Money Movement Service Terms will have the meanings given to them in the General Terms and Conditions, the Partner Terms, the applicable Money Movement Agreements, or elsewhere in the Agreement. In addition, the following definitions will apply to these Money Movement Service Terms only.

“Application” means the platform, website and/or mobile or other software application that Company operates and through which Company manages its own and its users’ payments experience.

“Company Services” means the products and services that Company provides through its Application, including the Money Movement-Enabled Services.

“Customer Account” means a Money Movement Account opened and used by a Customer to access the Money Movement-Enabled Services, as governed by the Money Movement Account Terms of Service (where such account is referred to as a “Money Movement Account”). A Customer Account enables the Customer to send and receive funds and, where enabled, to hold a Money Movement Balance. A Receive-Only User does not have a Customer Account.

“Customer” means a Merchant of Company that opens a Customer Account, as further described in the Agreement.

“End User” means, with respect to the Money Movement Open Banking Services, the meaning given in the Money Movement Open Banking Services Agreement.

“Financial Institution Partner” means a bank or other financial institution engaged by NMI to hold funds and/or provide funds transfer services in connection with the Money Movement Services, acting in the capacity described in, and subject to the limitations set out in the Money Movement Account Terms of Service.

“Instant Payments” means the faster-payment functionality that utilizes the RTP® network operated by The Clearing House and/or the FedNow® Service operated by the Federal Reserve Banks, as further described in Section 5 (Instant Payments Terms).

“Integration Requirements” means any developer documentation, integration guidance, or other technical, policy, or other requirements communicated to Company by NMI or posted on NMI’s website, each as may be updated from time to time.

“Integration Support Term” means the period specified as such in the applicable Proposal.

“Money Movement Balance” shall have the meaning ascribed in the Money Movement Account Terms of Service.

“Money Movement-Enabled Services” means the payments experience and related services that Company provides to its Customers and other end users through its Application using the Money Movement Services, including opening and managing Customer Accounts.

“Money Movement Platform” shall have the meaning ascribed in the Money Movement Account Terms of Service.

“Money Movement Platform Services” means the electronic payment services offered by NMI through an online dashboard experience available at www.dwolla.com and the application programming interfaces made available by NMI in connection with the Money Movement Services (the “Money Movement API“), together with related technical, business, and support services, each as may be modified or updated.

“Money Movement Services” means the Money Movement Platform Services, Money Movement Connect Services, Money Movement Open Banking Services, and any optional or faster-payment features, in each case as selected in the applicable Proposal.

“Payment Account” means the depository or other account designated by Company from which NMI is authorized to debit fees, expenses, and other amounts owed under the Agreement.

“Receive-Only User” means a Merchant that is only eligible to receive transfers to Linked Payment Accounts (as defined within the Money Movement Account Terms of Service) from a Verified Customer or Company. A Receive-Only User is not a Customer.

“Reversal” means any Transaction or payment sent or received by Company or a Customer that is returned, reversed, charged back, cancelled, rejected, or otherwise not completed, including where such Transaction: (a) is reversed in accordance with the risk management policies of NMI or its Financial Institution Partners; (b) is reversed in accordance with applicable Laws, including by ACH return under the Rules; (c) fails due to an error by Company or a Customer; (d) fails due to inaccurate information provided by Company or a Customer; or (e) is cancelled or rejected by a Customer or a Customer’s financial institution.

“Transaction” means any transaction initiated using the Money Movement Platform, regardless of transaction type.

“Unverified Customer” means a Customer that is not enabled to hold a Money Movement Balance, is not verified under a customer identification program, and is only eligible to transact with a Verified Customer or Company.

“VAN” means a virtual account number consisting of a digital wallet account number and a routing number tied to a Money Movement Balance, as further described in Section 4.1.

“Verified Customer” means a personal or business Customer that completes the identity verification process as further described in the Integration Requirements and is enabled to hold a Money Movement Balance, as further described in the Agreement.

2. The Services

2.1. Money Movement Services. During the Term, NMI will provide to Company, for Company’s use and/or for distribution to Merchants in accordance with the Agreement, the Money Movement Services selected in the applicable Proposal, which may include Money Movement Platform Services, and/or Money Movement Open Banking Services, together with any optional or faster-payment features (such as Next Day ACH, Same Day ACH, Instant Payments, Push-to-Debit, VANs, additional funds flows, custom emails, and higher transaction limits), in each case as applicable and as selected in the Proposal. Use of each Money Movement Service is subject to these Money Movement Service Terms, the applicable Money Movement Agreements, and the Proposal.

2.2. Term; Termination; Wind-Down.

(a) The term of each Money Movement Service will begin on the service start date specified for such Money Movement Service in the Proposal or, if no service start date is specified, on the Go-Live date for such Money Movement Service, and will continue as set forth below and in the applicable Proposal, unless earlier terminated as provided in the applicable Money Movement Agreement or the Agreement.

(b) Money Movement Platform Services and Money Movement Open Banking Services each continue until either party provides the other with three (3) months’ written notice of its intent to terminate the applicable Service, with such termination taking effect on the final day of the third month after notice is provided; and

(c) Termination of any Money Movement Service does not terminate Company’s obligation to pay amounts due for actual usage of such Money Movement Service incurred during the term or after termination takes effect, and any such usage after termination will be billed at the then-current rates set forth in the applicable Money Movement Agreement and Proposal, as applicable.

(d) Upon termination of any Money Movement Service, Company will, with respect to the terminated Money Movement Service: (i) immediately stop using such Money Movement Service to initiate new Transactions; (ii) cooperate with NMI to complete all pending Transactions; and (iii) cease use of, and remove from its Application, any NMI Trademarks used solely in connection with such Money Movement Service. In addition, upon termination of the Money Movement Platform Services or the Agreement, Company will promptly disburse any funds held in Customer Accounts in accordance with Your Terms and the Money Movement Account Terms of Service. Company’s performance of its obligations under this Section 2.2(d), including notifying its Customers of termination, disbursing Customer Account funds, and transitioning its Customers to Company’s successor payments provider, will not constitute a breach of Section 6.2 (Non-Solicitation) of the Partner Terms; this sentence controls over Section 6.2 of the Partner Terms solely to the extent of any conflict.

2.3. Eligibility. To use the Money Movement Services, Company must at all times: (a) be a U.S. company or other legally organized entity in good standing, with a U.S. physical address; and (b) maintain any Money Movement Account required in connection with the Money Movement Services in accordance with the applicable Money Movement Agreements. Company represents and warrants that it is eligible to use the Money Movement Services and that it will not open or use the Money Movement Services, or any Money Movement Account, for any personal, family, or household purpose. Company’s use of the Money Movement Services may be limited, suspended, or terminated if Company becomes ineligible under this Section or the applicable Money Movement Agreements.

2.4. Customer Eligibility. Company may enable, and may permit the opening of, a Customer Account only for a Customer that is: (a) if a natural person, at least eighteen (18) years of age and a resident of the United States; or (b) if a business or other entity, organized or incorporated in, and located in, the United States. Company will not open, or attempt to open, a Customer Account for any person or entity that does not meet the applicable criteria, and Company will use appropriate technical and operational measures to enforce these requirements.

3. Approved Use and Limits

3.1. Approved Use. Company may use, and may permit its Customers to use, the Money Movement Platform Services to transmit instructions to initiate Transactions only for the approved use(s) set forth in the applicable Proposal, which may include: (a) sending funds to end users; (b) collecting funds from Customers; (c) facilitating transactions between a Customer and another end user for the sale or purchase of goods and services; and (d) creating VANs for Customer Money Movement Balances, in each case as applicable. Company will not use the Money Movement Services for any purpose other than the approved use(s) set forth in the Proposal.

3.2. Transaction Limits. Transactions are subject to the per-transaction, weekly, daily, and payment timing-based limits applicable to the relevant user type (including Company, Verified Customer, Unverified Customer, and Receive-Only User), in each case as set forth in the applicable Proposal or as otherwise established or adjusted by NMI based on its underwriting and/or risk assessment. Notwithstanding any limit set forth in the Proposal, any limit may not be honored for any individual Transaction if NMI determines, in its sole discretion, that such Transaction poses a risk to NMI, another NMI client, or NMI’s Financial Institution Partner.

4. Additional Service Terms

The following terms apply as indicated. Terms governing specific Money Movement Services and optional features apply to the extent such Money Movement Services or features are selected in the applicable Proposal. The representations, warranties, and compliance obligations set forth in this Section apply to Company as and when applicable to Company’s business and activities, regardless of the Money Movement Services of features selected.

4.1. Virtual Account Numbers (VANs). Where VANs are made available, the following applies. VANs are provided through a partnership with Veridian Credit Union. Each VAN will consist of a digital wallet account number and a routing number tied to a Company’s or Company’s Verified Customer’s Money Movement Balance held by Veridian Credit Union. A Money Movement Balance may have multiple VANs, up to the limit of Linked Payment Accounts, as defined in the Money Movement Account Terms of Service, on that user’s Money Movement Account. VANs enable third parties without any relationship to NMI to send transactions to the user’s Money Movement Balance. FUNDS HELD AS VANS MAY NOT BE ELIGIBLE FOR SHARE INSURANCE OFFERED BY THE NATIONAL CREDIT UNION SHARE INSURANCE FUND AND ARE NOT ELIGIBLE FOR INSURANCE SPONSORED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION. IN THE EVENT OF A FINANCIAL INSTITUTION PARTNER RECEIVERSHIP, YOU MAY LOSE VALUE.

4.2. Money Transmission. If Company is a money services business (as defined at 31 C.F.R. § 1010.100(ff)), without limiting the generality of the Agreement, Company represents and warrants that its activities are conducted in accordance with the U.S. federal Bank Secrecy Act, 31 U.S.C. § 5311, et seq., and its implementing regulations at 31 C.F.R. Chapter X, as well as U.S. state laws regulating and requiring licensing for money services. Company is solely responsible for its compliance with such laws and regulations.

4.3. Gambling. Without limiting the generality of the Agreement, Company represents and warrants that it shall not engage in any activity that would violate the Unlawful Internet Gambling Enforcement Act of 2006 (“UIGEA“), the Prohibition of Funding of Unlawful Internet Gambling (Regulation GG), or any state law regulating gambling or gaming within the confines of such state. Where required by law, Company shall use appropriate technical and operational controls to ensure its users can be confined by age and geographic location of the end user. Company shall obtain all licenses or authorizations necessary to ensure adherence to applicable laws in the jurisdictions in which Company plans to operate its business.

4.4. HIPAA. Company represents and warrants that it will not create, receive, transmit, or maintain any Protected Health Information, as that term is defined at 45 C.F.R. § 160.103 (“PHI“) in connection with the Money Movement Services or otherwise provide, expose, or make PHI available to NMI or its Financial Institution Partners. Company agrees to indemnify and defend NMI against any claim that NMI is a Business Associate or failed to protect the privacy and security of PHI in accordance with the Health Insurance Portability and Accountability Act or its implementing regulations.

4.5. Licensing and Operational Controls. Company will implement and maintain operational and technical controls on Company’s application to ensure it only operates in the states where Company is licensed to do business, and Company will demonstrate those technical and operational controls and/or provide evidence of such licenses upon request. In addition, to the extent applicable to Company’s business as set forth in the Proposal:

(a) Lending.

(i) If Company’s activities do not constitute lending, Company represents and warrants that its activities do not constitute lending under applicable regulations and do not require licensing in any jurisdiction where Company offers services. If at any point Company’s activities require such licensing and Company has not complied with subsection (ii) below, or Company otherwise fails to comply with applicable regulations, NMI may immediately terminate the Agreement in addition to seeking any other remedies available under the Agreement.

(ii) If Company’s activities do constitute lending, Company represents and warrants that it is licensed to provide lending in each state where it offers lending services, and Company will implement and maintain operational and technical controls on Company’s application to ensure it only operates in the states where Company is licensed to provide lending. Company will demonstrate those controls and provide evidence of such lending licenses upon request. If at any point the Company fails to obtain or maintain required lending licensing, or fails to comply with applicable regulations, NMI may immediately terminate the Agreement in addition to seeking any other remedies available under the Agreement.

(b) Investment Platform. If Company operates an investment platform, Company represents and warrants that: (i) Company has all licenses, registrations, and/or authorizations necessary to comply with all applicable laws in the jurisdictions in which Company operates; (ii) Company will maintain such licenses, registrations, and/or authorizations for the entire duration of the Term and during any post-termination activities related to the Money Movement Platform Services; (iii) Company will acquire any additional licenses, registrations, and/or authorizations as may become necessary to maintain its compliance with all applicable laws in the jurisdictions in which it operates; and (iv) Company will use appropriate technical and operational controls to ensure any end user restrictions required by applicable Laws are maintained for the entire duration of the Term and during any post-termination activities related to the Money Movement Platform Services. Company agrees to provide proof of any required licensing, registration, authorization(s), technical controls, and/or operational controls upon request by NMI.

4.6. Money Movement Open Banking Services. Where Money Movement Open Banking Services are made available, the following applies: Company must establish and manage the Money Movement Open Banking Services relationship between Company and its End Users. Company must ensure, prior to any access or use of the Money Movement Open Banking Services, each End User’s agreement to the minimum end user terms and conditions governing such End User’s use and access to the Money Movement Open Banking Services in the form of an end user license agreement (“EULA“) that is substantially equivalent to and includes terms at least as protective of NMI and its service providers as the Money Movement Open Banking Services End User Terms and Conditions (available at www.dwolla.com/legal/open-banking-end-user-terms), incorporated herein by reference. Company agrees to update the EULA (or otherwise obtain agreement from each End User) based on its specific use case, as set forth in the Money Movement Open Banking Services Agreement. Company is responsible for all activity that occurs in its End User accounts and for its End Users’ compliance with the Agreement and the EULA.

4.6.1. Third-Party Service Provider Security Controls. The parties acknowledge and agree that the applicable third-party service provider has implemented and maintains security controls in the Money Movement Open Banking Services for the protection of End User data as set forth in the Third-Party Service Provider Security Addendum, incorporated herein by reference. The Third-Party Service Provider Security Addendum is subject to technical progress and further development, and the third-party service provider reserves the right to modify it provided that the functionality and security of the Money Movement Open Banking Services are not degraded.

4.6.2. Plaid Services. Where the Money Movement Open Banking Services include, are derived from, or incorporate services provided by Plaid Inc. (“Plaid“), Company agrees that before any End User engages with such services, Company will provide all notices and obtain all consents required under applicable Laws to enable Plaid to process End User data in accordance with Plaid’s privacy policy (available at www.plaid.com/privacy) and Exhibit E of the Money Movement Open Banking Services Agreement. Company will not: (a) make representations or other statements with respect to End User data that are contrary to or inconsistent with Plaid’s privacy policy; or (b) interfere with any independent efforts by Plaid to provide End User notice or obtain End User consent.

4.7. Integration Support. Where integration support is provided as set forth in the applicable Proposal, during the Integration Support Term NMI agrees to provide support services to assist Company in completing the technical and business implementation of the Money Movement Services into Company’s platform. Such services shall consist of: (a) access to the Money Movement Platform for review and submission of Integration Requirements; (b) NMI staff to assist with questions about the technical or business integration requirements and best practices; and (c) review of the Integration Requirements. Approval to go live on the Money Movement Platform will be subject to NMI’s standard risk review policies and procedures and will require Company to have completed all required integration project items. Integration Support Fees, as applicable, are not refundable in the event that Company does not go live for any reason.

4.9. Reserve Account. Where a Reserve Account is required, as set forth in the applicable Proposal, the following applies.

(a) Company agrees to fund a separate reserve account owned by NMI, with NMI (the “Reserve Account“), to be used in the event of a Reversal, any unpaid amounts owed by Company under the Agreement, or any other losses to NMI or its Financial Institution Partners caused directly or indirectly by Company, its end users, and/or the activity over Company’s application. Company acknowledges that NMI may apply funds from the Reserve Account in order to reimburse NMI or its Financial Institution Partners for Company’s liability for Reversals, to pay any unpaid amounts owed by Company under the Agreement, or to reimburse NMI in the event of any loss or shortage of NMI or its Financial Institution Partners under the Agreement. NMI will notify Company in writing when Reserve Account funds are applied as provided in this Section 4.9.

(b) Company agrees to maintain the reserve balance amount required in the applicable period as set forth in the applicable Proposal (the “Reserve Balance Amount“) in the Reserve Account at all times, and agrees to first fully fund the Reserve Account in the amount set forth in the Proposal on the Effective Date or in accordance with the funding schedule set forth in the Proposal (the “Funding Schedule“), as applicable. Where a Funding Schedule applies, the Reserve Balance Amount required at any given time is the amount specified for that period in the Proposal. Failure to either maintain the Reserve Balance Amount or fund the Reserve Account in accordance with the Proposal may result in immediate termination of the Agreement. If the Reserve Account balance is less than the Reserve Balance Amount then in effect at any time, Company will have five (5) business days from the date the Reserve Account goes below the Reserve Balance Amount to replenish it to the Reserve Balance Amount. Company expressly authorizes NMI to debit Company’s Money Movement Account for the purposes set out in this Section 4.9 and to debit Company’s linked financial institution account(s) for the purpose of ensuring the Reserve Account and Reserve Balance Amount are available as agreed. Company will be restricted from making withdrawals from or initiating transactions to the Reserve Account that cause the amount in the Reserve Account to be less than the Reserve Balance Amount.

(c) NMI will first seek recovery related to Reversals, unpaid amounts owed to NMI, or loss or shortage from any funds in the Reserve Account before pursuing any other remedies or rights under the Agreement. Nothing in this Section 4.9 shall preclude NMI from taking any other action as allowed under the Agreement. Upon written notice to Company, NMI may increase the required Reserve Balance Amount above the amount(s) set forth in the Proposal.

(d) In the event the Agreement is terminated, Company shall maintain an amount in the Reserve Account equal to the Reserve Balance Amount for a period of at least sixty (60) days after the last debit transaction date, and NMI will transfer to Company any amounts remaining in the Reserve Account net of all payments due to NMI under the Agreement, no later than five (5) business days after the end of such period.

(e) Reserve Funding Requirements and Remedies.

(i) Company agrees that it will not be allowed to utilize the Money Movement Platform for the initiation of transfers, or for access of any enhanced features, including but not limited to, higher transaction limits, faster timing, or additional funds flows until the Reserve Account is funded as required under this Section and the Proposal, as determined in NMI’s sole discretion.

(ii) A “Funding Shortfall” means any failure to fund a scheduled deposit by its due date under the Funding Schedule, to fully fund the Reserve Account by the final funding date set forth in the Proposal, or to maintain the Reserve Balance Amount then in effect. A Funding Shortfall constitutes a material breach of the Agreement.

(iii) Upon a Funding Shortfall, NMI may, in its sole discretion, and in addition to any other rights or remedies, take any one or more of the following actions until the Reserve Account is funded to the Reserve Balance Amount then in effect: (A) suspend or bar Company from initiating transfers; (B) suspend, revoke, or reduce any enhanced features made available to Company; (C) apply the standard limits otherwise applicable to Company’s user type; and/or (D) suspend Money Movement Services.

4.10. Reversals; Company Liability; Recovery.

(a) Company Liability for Reversals. Company is solely responsible for all payment activity initiated by Company and its Customers using the Money Movement Services, including any fraudulent activity. Neither NMI nor any Financial Institution Partner has any obligation to ensure that funds required to complete a Transaction are available. Except for a Reversal made in error by NMI, Company is liable to NMI and its Financial Institution Partners for any and all losses caused by Reversals and any other Customer Account activity, whether or not authorized by Company or a Customer, including unauthorized or erroneous activity initiated by Company, a Customer, or Company’s Application, whether through misconduct, negligence, error, or otherwise.

(b) Relationship to Merchant Losses. Notwithstanding Section 5.2 (Merchant Losses) of the Partner Terms, Company’s liability for Reversals and Customer Account activity under this Section 4.10 applies without regard to fault and is not limited to the categories of Merchant Losses for which Company otherwise remains liable under Section 5.2. This Section 4.10 controls over Section 5.2 of the Partner Terms with respect to the Money Movement Services solely to the extent of any conflict.

(c) Recovery. Company authorizes NMI and its Financial Institution Partners to recover amounts owed under this Section 4.10 by: (i) where a Reserve Account exists, applying funds from the Reserve Account in accordance with Section 4.9; (ii) debiting the available balance in Company’s Money Movement Account; (iii) debiting Company’s Payment Account(s); and (iv) if amounts remain outstanding, requesting immediate payment from Company and, if not timely paid, engaging in collection efforts and pursuing any other rights or remedies under the Agreement, including termination for non-payment. This Section is in addition to NMI’s rights under Section 3.4 of the General Terms and Conditions and does not limit NMI’s set-off rights under the Agreement.

(d) Deemed Direct Damages. All amounts for which Company is liable under this Section 4.10 will be deemed direct — and not indirect, incidental, consequential, special, or exemplary — damages, and will be collectible notwithstanding any provision of the Agreement to the contrary.

(e) Excessive Reversals. If Company’s Application has an unacceptable number or rate of Reversals, NMI may immediately restrict or suspend Company’s use of the Money Movement Services, including by terminating the Agreement.

5. Instant Payments Terms

Where Instant Payments are made available, the following terms apply. Instant Payments may utilize the RTP® network operated by The Clearing House and/or the FedNow® Service operated by the Federal Reserve Banks, and NMI may route Transactions through either, in its sole discretion.

5.1. RTP® Network. The following applies to the RTP System.

(a) Use of Real Time Payments System. Company will transmit instructions via its Application to NMI. Company is acting as a sender under the Real Time Payments (“RTP“) System and will transmit instructions to make payments to a designated receiver (the “Payment Instructions“). The Money Movement Platform will prepare and transmit such Payment Instructions to NMI’s Financial Institution Partner in accordance with the Agreement. Company acknowledges that: (i) all funds held or transferred using the Money Movement Platform will be held or transferred by one or more of NMI’s Financial Institution Partners using a pooled holding or custodial account; (ii) NMI does not own and has no legal, beneficial, or other interest in, claim to, or right to control the pooled holding or custodial account established at the Financial Institution Partner; and (iii) the owner of any amounts deposited in such custodial account is the designated recipient of such funds. Neither Company nor any third party shall be entitled to any interest earned on any funds held by the Financial Institution Partner(s). Any advertising materials highlighting the use of the RTP System must identify the Financial Institution Partner(s) providing such services and describe such services as a service of the Financial Institution Partner.

(b) Transmittal of RTP Transactions. Company shall ensure the Payment Instructions provided to NMI include all information necessary for NMI’s Financial Institution Partner to effectuate RTP Transactions in accordance with all applicable operating rules, technical specifications, and other standards of the RTP System (collectively, the “RTP Rules“). By submitting an RTP Transaction, Company represents and warrants that: (i) as sender, it authorizes NMI’s Financial Institution Partner(s) to initiate such payment using the RTP System and to initiate a debit to Company’s designated account in the amount of such payment; (ii) such payment is initiated in connection with a separate agreement with the receiver; and (iii) such payment does not violate applicable Laws. Company shall ensure that, prior to providing any Payment Instructions, its designated account contains sufficient amounts to cover all transfers, expenses, and fees. Company shall identify any receivers who are consumers and distinguish them from receivers who are businesses, and shall ensure it has entered into an agreement with any receiver authorizing the payments and method provided for in the Payment Instructions. Company shall have no right to cancel or amend any Payment Instruction after it is transmitted to NMI’s Financial Institution Partner. Payment Instructions are subject to the Financial Institution Partner’s rules and requirements, and the Financial Institution Partner may limit, suspend, or cancel any RTP Transactions if it determines such action is necessary. NMI will notify Company if it receives notice from a Financial Institution Partner(s) that such action is being taken.

(c) Program Review. NMI may be required to submit to program reviews by its Financial Institution Partner(s), and Company agrees to provide such information as is reasonably requested related to Company’s services.

(d) Eligibility. NMI’s Financial Institution Partner(s) maintain certain rules about businesses that may not use the RTP System, and Company agrees that eligibility for use of the RTP System will be determined in the sole discretion of NMI and the Financial Institution Partner.

(e) Consumer Complaints. Company shall aggregate any consumer complaints related to its services and the Payment Instructions and submit them to NMI no later than the fifth (5th) day of each month.

(f) Limitations on Financial Institution Partners’ Services. Company acknowledges and agrees that the Financial Institution Partners’ services provided under the Agreement do not include risk or fraud management, dispute management, electronic check services, any customer service with respect to the Money Movement Platform or disbursements made using the Money Movement-Enabled Services, any promotion or marketing with respect to the Agreement, or the retention or storage of any Personal Data or information related to the Agreement.

(g) Data Use by Financial Institution Partner(s). Company agrees that NMI’s Financial Institution Partner(s) may use information provided to them in the course of carrying out their obligations under the Agreement for: (i) fraud prevention, including protecting against or preventing actual and potential fraud, unauthorized transactions, claims, or other liability; (ii) analyzing or improving their services, including security; (iii) preparing and furnishing analyses and other internal and external reports of aggregated, anonymized information; (iv) providing other products or services, including those involving data analytics, to NMI, Company, and other customers or third parties, except that any Personal Data will be provided only in aggregated, anonymized form; and (v) complying with applicable Laws, including as may be required or requested by any judicial process or governmental agency having or claiming jurisdiction over the Financial Institution Partner(s).

(h) Insurance. Company shall obtain and maintain, with financially sound and reputable insurers, the insurance set forth in Section 5.3.

5.2. FedNow® Service. The following applies to the FedNow Service.

(a) Use of FedNow Service. Company will transmit instructions to make payments to a designated receiver (the “Payment Orders“) via its Application to NMI. Company is acting as a sender under the FedNow Service provided by the Federal Reserve Banks (the “FedNow Service“). Company will provide accurate and complete information regarding the receivers, including their bank account details, to ensure the successful processing of Payment Orders. The acknowledgments regarding pooled holding or custodial accounts, ownership of funds, interest, and advertising set forth in Section 5.1(a) apply equally to the FedNow Service.

(b) Transmittal of FedNow Service Transactions. Company shall ensure the Payment Orders provided to NMI include all information necessary for NMI’s Financial Institution Partner to effectuate FedNow Service transactions in accordance with all applicable rules and standards of the FedNow Service, including by way of example Operating Circular No. 8 and Subpart C of Regulation J (12 C.F.R. § 210.1 et seq.) (collectively, the “FedNow Service Rules“). By submitting a FedNow Service transaction, Company represents and warrants that: (i) as sender, it authorizes NMI’s Financial Institution Partner(s) to initiate such payment using the FedNow Service and to initiate a debit to Company’s designated account in the amount of such payment; (ii) such payment is initiated in connection with a separate agreement with the receiver; and (iii) such payment does not violate applicable Laws. Company shall ensure that, prior to providing any Payment Orders, its designated account contains sufficient funds to carry out such Payment Orders, including sufficient amounts to cover all transfers, expenses, and fees. Company shall identify any receivers who are consumers and distinguish them from receivers who are businesses, and shall ensure it has entered into an agreement with any receiver authorizing the payments and method provided for in the Payment Orders. Company acknowledges and agrees that Payment Orders are irrevocable and cannot be canceled or reversed once initiated, and Company shall have no right to cancel or amend any Payment Order after it is transmitted to NMI’s Financial Institution Partner. Payment Orders are subject to the Financial Institution Partner’s rules and requirements, and the Financial Institution Partner may limit, suspend, or cancel any FedNow Service transactions if it determines such action is necessary. NMI will notify Company if it receives notice from a Financial Institution Partner(s) that such action is being taken.

(c) Program Review; Eligibility; Consumer Complaints; Limitations; Data Use. The provisions of Sections 5.1(c) through 5.1(g) apply equally to the FedNow Service, except that program reviews may also be required by the Federal Reserve.

(d) Insurance; Data Safeguards. Company shall maintain the insurance set forth in Section 5.3 and the data safeguards set forth in Section 5.4.

5.3. Insurance. Company shall obtain and maintain in full force and effect, with financially sound and reputable insurers, insurance to cover Company’s obligations under the Agreement in at least the following types and amounts: (a) Commercial General Liability Insurance, including Products/Completed Operations, Premises & Operations, and Personal & Advertising Injury, on an occurrence basis, with a minimum per-occurrence combined single limit of $1,000,000 and $2,000,000 in the aggregate; (b) Professional Liability/Errors and Omissions Insurance, which shall include coverage for, but not be limited to, loss or damage resulting from errors and omissions, personal injury (including invasion of privacy), intellectual property offenses related to electronic data services, software, internet, network and e-business activities, malicious code, attack, programming error and theft, disclosure or damage of electronic data, claims of code misappropriation, code theft, copyright or trademark infringement, network security breaches, and privacy notification costs, with a limit of no less than $2,000,000 per claim; (c) Cyber Insurance, with a limit of no less than $1,000,000, providing coverage in the event of loss of Customer information and Confidential Information; and (d) a workers’ compensation policy in at least the minimum amounts required by any applicable statute or regulation.

5.4. Data Safeguards. Company agrees that, to the extent it stores or provides any sensitive information pursuant to the Agreement, it shall maintain a comprehensive written information security program that includes technical, physical, and administrative/organizational safeguards designed to: (a) ensure the security and confidentiality of such information and any information received from NMI or its Financial Institution Partners under the Agreement; (b) protect against any anticipated threats or hazards to the security and integrity of such information; (c) protect against any actual or suspected unauthorized processing, loss, or acquisition of such information; (d) ensure the proper disposal of such information; and (e) regularly test or otherwise monitor the effectiveness of such safeguards. Company shall promptly notify NMI of any known unauthorized disclosure of or access to any such information.

6. Fees and Payment Terms

6.1. Fees. Company shall pay to NMI the fees for the Money Movement Services, including implementation fees, monthly recurring fees, usage fees, faster-payment and optional feature fees, applicable monthly minimum fees, and any other fees, in each case in the amounts and on the terms set forth in the applicable Proposal. All fees and pricing for the Money Movement Services are as set forth in the Proposal.

6.2. Payment. All fees are due when billed, and Company authorizes NMI to debit Company’s Payment Account for all fees, expenses, and other amounts owed under the Agreement. Monthly recurring fees and usage fees will be invoiced monthly in arrears. Monthly recurring fees are due each month during the applicable Service term, regardless of whether Company actually used the applicable Money Movement Service. If Company’s go-live date occurs before the beginning of the applicable Money Movement Service term, Company will be charged a prorated amount of the applicable monthly recurring fees for the period between the go-live date and the beginning of the applicable Money Movement Service term. Where a monthly minimum fee applies, as set forth in the Proposal, if Company’s actual usage of the applicable Money Movement Service does not exceed the monthly minimum for a given month, the monthly minimum fee will be charged for that month. Company is liable to NMI for all fees and expenses (including reasonable attorneys’ fees) that NMI incurs in collecting, or attempting to collect, fees, expenses, or other amounts owed to NMI.

7. Financial Institution Partners as Third-Party Beneficiaries.

Notwithstanding Section 10.7 (No Third-Party Beneficiaries) of the General Terms and Conditions, each Financial Institution Partner is an intended third-party beneficiary of, and may directly enforce, the provisions of these Money Movement Service Terms that expressly confer rights on, or allocate liability or recovery to, the Financial Institution Partners, including Section 2.2(d), Section 4.9 (Reserve Account), Section 4.10 (Reversals; Company Liability; Recovery), and Section 5 (Instant Payments Terms), and Section 8.11 (End User Management). No Financial Institution Partner has any obligation or liability to Company except as expressly stated in the applicable Money Movement Agreements. This Section 7 controls over Section 10.7 of the General Terms and Conditions solely to the extent of any conflict and solely with respect to the Money Movement Services.

8. End User Experience and Integration Requirements.

8.1. Go-Live Approval. Before receiving API Credentials or providing any Money Movement-Enabled Services in its Application, Company must successfully complete NMI’s review of Company’s Money Movement API integration and receive NMI’s written approval to go live (“Go-Live“). Company’s Application must be developed in compliance with the Agreement, the Money Movement Agreements, the Integration Requirements, and applicable Laws. In addition to reviewing Company’s integration, NMI may review information relating to Company’s business, operations, and financial condition, and Company agrees to cooperate with such review. NMI may require Company to modify its integration or Application user experience if it does not comply with the Integration Requirements. Company is solely responsible for its integration costs and expenses, and Company acknowledges that approval to Go-Live is granted by NMI in its sole discretion. This Section supplements, and does not limit, any integration support terms set forth in Section 4.7.

8.2. API Credentials. To access and use the Money Movement API, NMI will provide Company with credentials in the form of a key and secret specific to Company (“API Credentials“). API Credentials are Confidential Information and the property of NMI, and constitute credentials for purposes of Section 4.4 of the General Terms and Conditions, Without limiting Section 4.4 of the General Terms and Conditions, Company is responsible for maintaining commercially reasonable security and control of its API Credentials. Company will not sell, transfer, sublicense, or disclose API Credentials to any third party, other than to Company’s third-party service providers who need them to perform services for Company, provided such service providers are bound by confidentiality obligations at least as protective as those in the Agreement and Company remains responsible for their acts and omissions. Company will notify NMI immediately upon discovering any actual or suspected compromise of its API Credentials, and NMI may suspend or revoke API Credentials upon such notice, upon NMI’s own detection of suspected compromise or fraudulent activity, or as required by a Financial Institution Partner. NMI may immediately revoke API Credentials if Company breaches the Agreement.

8.3. Bank Account Verification. Where an end user links a U.S. state- or federally-chartered bank or credit union account (“Bank Account“) to Company’s Application for use of the Money Movement-Enabled Services, NMI may require Company to verify ownership of the Bank Account in a commercially reasonable manner as specified in the Integration Requirements. If Company does not use a verification method provided by NMI, Company must obtain NMI’s approval before using its own method, and must cooperate with NMI’s review of that method, including providing any documentation NMI reasonably requests. Company must notify NMI and receive NMI’s written approval before changing a verification method that NMI has already approved.

8.4. Your Terms.

Requirement. Company must maintain a written agreement with its Customers and other end users governing the Money Movement-Enabled Services (“Your Terms“). Your Terms must: (a) be presented to end users via online disclosure; (b) be accepted electronically in an auditable manner that complies with applicable federal electronic-signature Law; and (c) permit Company to comply with all requirements of the Agreement.

Enforcement; No NMI Liability; Suspicious Activity. Company is responsible for enforcing end users’ compliance with Your Terms and must take commercially reasonable steps to ensure that end-user activity using the Money Movement-Enabled Services does not violate applicable Laws or the Money Movement Agreements. Neither NMI nor any Financial Institution Partner has any liability to any end user for Company Services, including any goods or services sold through Company’s Application. Company will notify NMI immediately upon detecting illegal, fraudulent, deceptive, or otherwise suspicious activity associated with an end user at support@dwolla.com.

Customer Account Disclosures. Where Company’s Application allows a Customer to open a Customer Account, Your Terms must also clearly disclose that: (i) the Customer must open a Customer Account by accepting the Money Movement Account Terms of Service and the Privacy Policy; (ii) any funds held in a Customer Account are held by NMI’s Financial Institution Partners as set out in the Money Movement Account Terms of Service; (iii) the Customer will access and manage the Customer Account through Company’s Application; (iv) Company will provide all necessary Customer Account notifications, including payment activity notifications; and (v) Company will provide all necessary customer support for Customer Account activity, including payment activity and dispute resolution.

Acceptance Capture; Onboarding. Company must capture the Customer’s acceptance of Your Terms, the Money Movement Account Terms of Service, and the Privacy Policy, before providing a Customer Account or any related Money Movement-Enabled Services to that Customer. For the Money Movement Services, the Money Movement Account Terms of Service constitutes the Merchant Agreement with respect to the Customer and the Customer onboarding conducted through Company’s Application in accordance with this Section 8.4 satisfies and replaces the enrollment and information-submission processes described in Section 2.6 and 2.8 of the Partner Terms solely with respect to the Money Movement Services and solely to the extent of any conflict. Company is solely responsible for clearly explaining to its end users the nature of the Company Services, the Money Movement-Enabled Services, and NMI’s role in the provision of such services.

8.5. Origination Authorization; Express Consent. Before initiating any payment for an end user, Company must capture the end user’s authorization for NMI, as Company’s payments service provider, to originate funds transfers according to the end user’s instructions as provided through Company’s Application. Company must obtain an end user’s express consent before conducting any activity for or on behalf of the end user in connection with the Money Movement-Enabled Services, including: (a) collecting end-user personal data; (b) sharing end-user data with NMI to enable the Money Movement-Enabled Services, including the provisioning and support of a Customer Account; (c) using end-user personal data for any purpose not previously disclosed or for which the end user has withdrawn consent; or (d) conducting any activity for which the end user has not given consent or has withdrawn it.

8.6. Disclosures to End Users. Company must provide clear and easily understood disclosures to end users regarding their use of the Money Movement-Enabled Services, including:

(a) Funding Source. If Company’s Application allows an end user to choose among funding sources or to set a hierarchy of funding sources, Company must clearly disclose the funding source or hierarchy applicable to a given transfer before the end user authorizes it.

(b) Fees. Any fees charged in Company’s Application must be disclosed to end users before the fees are charged, and Company must obtain the end user’s express consent before charging any fee.

(c) Purchase Terms. If Company’s Application allows an end user to buy goods or services, the Application must clearly identify the goods or services, the purchase price, any taxes or fees, and the payment schedule (if any).

(d) Transfer Times. Company must clearly disclose to each end user, before payment initiation, the transfer times applicable to the funding option used. Subject to delays caused by financial institutions independent of the Money Movement Platform or delays due to fraud or compliance review, standard ACH transfers normally process within three to four (3–4) business days for transfers from a Bank Account to a Money Movement Account and within one to two (1–2) business days for transfers from a Money Movement Account to a Bank Account. Transfer times are not guaranteed.

(e) Refund Policy. If Company’s Application allows end users to buy or sell goods or services, Company must publish a refund policy within its Application and enforce compliance with that policy.

8.7. Recurring Payments. If Company’s Application allows a non-business end user (an individual) to authorize one or more recurring payments, Company must: (a) clearly disclose the payment amount(s), payment schedule, and any relevant payment terms; (b) clearly disclose that the end user has the right to receive advance notice of the amount and date of each future payment at least ten (10) days before the payment is initiated, or offer the end user the option to receive advance notice only for payments exceeding a specified amount; (c) clearly disclose the funding source for the payment or series of payments, or allow the end user to choose the funding source before each payment is initiated; (d) obtain the end user’s express consent after making the disclosures in (a)–(c); (e) provide the advance notice(s) described in (b); (f) provide a readily accessible method for the end user to cancel one or more payments; (g) comply with any cancellation request submitted under (f); and (h) comply with all applicable Laws.

8.8. Tax Reporting Cooperation. Company acknowledges that NMI may have informational reporting obligations to the Internal Revenue Service in connection with payments made for goods or services through Company’s Application. Company agrees to provide NMI with any information necessary to complete such reporting, including end-user information for the purposes of filing Form 1099-K. This Section supplements, and does not limit, the tax provisions of Section 3.5 of the General Terms and Conditions.

8.9. Customer Support for End Users. Company is solely responsible for providing customer support to its Customers and other end users for Company Services and the Money Movement-Enabled Services, and must clearly disclose its customer-support policy and publish its support contact information in an easily accessible manner within any Application through which Company offers the Money Movement-Enabled Services. If an end user requests NMI’s customer-support contact information, Company may provide the following: support@dwolla.com and 1-888-289-8744. Notwithstanding Section 4.6 of the Partner Terms, NMI has no obligation to provide customer support or technical support to any Customer or other end user in connection with the Money Movement Services, except as NMI may elect in its discretion under Section 8.11(a).

8.10. Additional Prohibited Uses. In addition to the restrictions in Section 2.2 of the General Terms and Conditions and Sections 2.4 and 4.3 of the Partner Terms, and without limiting them, Company will not, and will not permit any Customer, end user, or third party to:

(a) circumvent any limitation on a feature of the Money Movement Services as communicated by NMI, or use the Money Movement Services in a manner inconsistent with the Integration Requirements or with any guidance regarding restricted activities communicated by NMI;

(b) use the Money Movement Services to facilitate transactions for any third party that is not a legitimate Customer or end user of Company;

(i) Company’s own use of the Money Movement Services as authorized under the Proposal; or

(ii) through the marketing and distribution of the Money Movement Services to Company’s Merchants for use as Customers as authorized under the applicable Proposal and pursuant to the license granted in Sections 2.1 and 2.4 of the Partner Terms; or

(d) attempt any of the foregoing.

Notwithstanding Section 2.2 of the Partner Terms, Company may not sublicense any right to access or use the Money Movement Services, and no Sub-Affiliate may access or use the Money Movement Services; this sentence controls over Section 2.2 of the Partner Terms solely with respect to the Money Movement Services and solely to the extent of any conflict.

8.11. End User Management.

(a) End User Disputes. Company is responsible for resolving all end-user disputes related to the Company Services (“End User Disputes“), including any End User Dispute communicated by an end user to NMI. Neither NMI nor any Financial Institution Partner has any obligation or liability associated with Company’s End User Dispute resolution policies and procedures. Company will provide NMI with any requested information regarding the status or resolution of an End User Dispute. NMI has the right, but no obligation, to provide support to an end user that contacts NMI regarding an End User Dispute, and in such event Company will provide NMI with any information NMI reasonably requests to assist the end user.

(b) End User Data Accuracy; Classification. Company is solely responsible for providing accurate and complete end-user data as required or requested by NMI for the purposes of providing the Money Movement Services, and will use commercially reasonable efforts to verify that end-user data provided to NMI is accurate and complete. Company must ensure that end users are properly identified and classified as personal or business end users, and business end users may not conduct Transactions for personal, family, or household purposes. NMI may require Company to collect and provide additional information to enable the Money Movement-Enabled Services for an end user, and Company agrees to provide such information. Company will not sell, transfer, sublicense, or assign any interest in any data that it accesses or receives via the Money Movement API or the Money Movement Services, and may use such data only in accordance with the Agreement and applicable Laws.

(i) Company Risk Management Responsibilities. It is Company’s sole responsibility to verify the identity and legitimacy of its end users, their activities, and their Transactions, and to monitor for suspicious or fraudulent activity, using commercially reasonable methods and risk-based processes and procedures that comply with the Integration Requirements. NMI does not provide end-user identity verification, end-user fraud monitoring, or end-user fraud detection services to Company, and any identity verification or monitoring NMI performs is for NMI’s own regulatory and compliance purposes only and may not be relied upon by Company. Company is solely responsible for its end users’ activity and activity generally on its Application or initiated using the Money Movement Services, including any fraudulent activity.

(ii) NMI Risk Management. Company understands and agrees that NMI may decline, restrict, or otherwise limit any Transaction and/or the ability of any end user to use the Money Movement-Enabled Services in accordance with NMI’s risk management policies. NMI may restrict, suspend, or terminate an end user at any time if: (A) NMI determines that the end user’s activities violate the Money Movement Agreements, any other applicable NMI agreement or policy, or applicable Laws; (B) NMI reasonably determines that the end user or the end user’s activities pose unacceptable risk to NMI, its Financial Institution Partners, or its users; (C) Company does not provide NMI with all end-user information required or requested by NMI; or (D) for any other reason, in NMI’s reasonable discretion. If NMI suspends or restricts an end user, NMI will use reasonable efforts to provide timely notice to Company, which may occur after the suspension or restriction. NMI may, in its reasonable discretion, contact any end user for fraud investigation or risk management purposes, and will notify Company of such contact to the extent permissible under applicable Laws.

(d) Termination of a Customer. Prior to terminating its relationship with a Customer, Company must ensure that any funds held in the Customer Account are handled or disbursed in accordance with Your Terms, and Company is solely responsible for ensuring such amounts are appropriately transferred in a timely manner. NMI may require Company to terminate a Customer Account if NMI deems it inactive or dormant, or for any other reason permitted under the Agreement. Company will notify NMI promptly at support@dwolla.com if it receives a request from a Customer to close a Customer Account. Company acknowledges that an end user may terminate Company’s access to their Customer Account at any time upon notice to NMI, and that if a Customer owes Company funds, Company’s recourse to recover those funds may be outside the Money Movement Platform.

9. Governing Law; Dispute Resolution; Limitation of Liability for Money Movement Services.

Notwithstanding Sections 7.3 and 10.2 of the General Terms and Conditions:

(a) any dispute, claim, or controversy arising out of or relating to a Money Movement Account, the funds held therein, the Money Movement-Enabled Services, or the account-holder relationship between Company or a Customer and NMI or a Financial Institution Partner is subject to the dispute-resolution (including binding arbitration and class-action waiver), governing-law, and limitation-of-liability provisions of the Money Movement Account Terms of Service, as amended from time to time; and

(b) all other disputes arising out of or relating to the Money Movement Services, including fees, and Company’s obligations under the Partner Terms, are governed by the laws of the State of Delaware and resolved exclusively in the state or federal courts located in Delaware, in accordance with Section 10.2 of the General Terms and Conditions, and the limitation of liability in Section 7.3 of the General Terms and Conditions applies to such disputes.

For clarity, Company’s liability to NMI and the Financial Institution Partners under Section 4.10 (Reversals; Company Liability; Recovery) and Section 8.11 (End User Management) is not limited by any limitation-of-liability provision of the Money Movement Account Terms of Service or Section 7.3 of the General Terms and Conditions.

This Section 9 controls over Sections 7.3 and 10.2 of the General Terms and Conditions solely with respect to the Money Movement Services and solely to the extent of any conflict.

Fee Navigator Service Terms

1. Definitions; Interpretation

1.1. Fee Navigator Services. If Company has selected Fee Navigator services within a Proposal, these Fee Navigator Service Terms (“Fee Navigator Service Terms“) will apply in addition to the General Terms and Conditions, the Partner Terms, the Proposal(s), and any other terms and conditions set forth in the Agreement. The specific Fee Navigator Services made available to Company, together with the applicable fees, Scope of Use, and Subscription Term, are as selected and set forth in the applicable Proposal.

1.2. NMI Affiliate. Fee Navigator, Inc. (“Fee Navigator“) is the NMI Affiliate providing the Services under these Fee Navigator Service Terms, and for the purposes of these Fee Navigator Service Terms, references to “NMI” will refer to such NMI Affiliate only.

1.3. Incorporated Agreements. Any reference to an “order form” in any Fee Navigator ordering documentation, online sign-up, credits purchase, or subscription flow means the applicable Proposal.

1.4. Additional Definitions. Capitalized terms used but not defined in these Fee Navigator Service Terms will have the meanings given to them in the General Terms and Conditions, the Partner Terms, or elsewhere in the Agreement. In addition, the following definitions will apply to these Fee Navigator Service Terms only.

“Add-On” means integrations, applications, and other add-ons that are used with the Fee Navigator Service.

“Aggregate/Anonymous Data” means: (i) data generated by aggregating Company Data with other data so that results are non-personally identifiable with respect to Company; and (ii) learnings, logs, and data regarding use of the Fee Navigator Service.

“Authorized Users” means Company’s employees and third parties who are acting for Company’s benefit and on its behalf.

“Company Apps” means the applications (such as for web or mobile platforms) expressly identified in the applicable Proposal.

“Company Data” means, for purposes of these Fee Navigator Service Terms: (i) Content; and (ii) Submitted Data.

“Company Properties” means: (i) Company Sites; (ii) Company Apps; or (iii) other types of platforms or properties (as may be supported by Fee Navigator) specified in the applicable Proposal.

“Company Sites” means the web domains expressly identified in the applicable Proposal.

“Content” means documents, text, images, or other content that Company selects for use with the Fee Navigator Service.

“Documentation” means the end user technical documentation created by Fee Navigator and provided with the Fee Navigator Service.

“Fee Navigator Code” means the code developed and provided by Fee Navigator to Company for use in connection with the Fee Navigator Service, which may include Fee Navigator’s JavaScript code, SDK(s), and Add-Ons developed and provided by Fee Navigator.

“Fee Navigator Property or Properties” means web, mobile, or any type of application or environment under the control of Fee Navigator.

“Fee Navigator Service” means the specific proprietary software-as-a-service product(s) of Fee Navigator specified in Company’s Proposal, including any related Fee Navigator Code and Documentation and any embedded or accessed Third-Party Products necessary to deliver the service, but excluding any Company-provided Third-Party Products.

“Fee Navigator Technology” means the Fee Navigator Service, any and all related or underlying documentation, technology, code, know-how, logos, and templates (including in any reports or output obtained from the Fee Navigator Service), anything delivered as part of support or other services, and any updates, modifications, or derivative works of any of the foregoing, including as may incorporate any feedback.

“Regulated Data” means: (i) any personally identifiable information (other than personal information about Authorized Users); and (ii) any government IDs, financial information (including bank account or payment card numbers), or any other information subject to regulation or protection under specific laws or regulations.

“Scope of Use” means the usage limits or other scope of use descriptions for the Fee Navigator Service included in the applicable Proposal (including descriptions of packages and features) or Documentation, including any numerical limits on Authorized Users, descriptions of product feature levels, and names or numerical limits for Company Properties.

“Submitted Data” means data uploaded, inputted, or otherwise submitted by Company to the Fee Navigator Service, including Third-Party Content.

“Subscription Term” means the initial term for the subscription to the applicable Fee Navigator Service, as specified on Company’s Proposal(s), and each subsequent renewal term, automatic or not (if any), for the same or different period.

“Third-Party Content” means content, data, or other materials that Company provides to the Fee Navigator Service from its third-party data providers, including through Add-Ons used by Company.

“Third-Party Product” means any applications, integrations, software, code, online services, systems, other products, and Add-Ons not developed by Fee Navigator.

2. The Services

2.1. Overview. Fee Navigator provides a suite of products that allows Company to automatically analyze merchant statements, assist with lead nurturing, gain market insights, and access other functionality that may become available in the future. The Fee Navigator Service may be delivered via Fee Navigator Properties, as well as via Company Properties or Authorized Users’ properties, in the form of web, mobile, server-side, API, or any other form. If delivered on properties other than Fee Navigator Properties, Company first installs the applicable Fee Navigator Code for the relevant platform and then uses the tools within the applicable Fee Navigator Service.

2.2. Grant of Rights. Subject to all the terms and conditions of the Agreement, Fee Navigator grants Company a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the Fee Navigator Service(s) designated on Company’s Proposal solely for Company’s internal business purposes, and only in accordance with the Agreement, the Documentation, and all applicable Scope of Use descriptions. Where the Fee Navigator Service requires installation of Fee Navigator Code on Company Properties, the rights granted in this Section further include the right to install and use the relevant Fee Navigator Code on the specified Company Properties and, in the case of Company Apps, to distribute the installed Fee Navigator Code with Company Apps.

2.3. Authorized Users. Company may permit its Authorized Users to use the Fee Navigator Service, provided their use is for Company’s benefit only and remains in compliance with the Agreement. Company will be responsible and liable for all Authorized Users’ use and access and their compliance with the Agreement. Use by all Authorized Users in aggregate will count toward applicable Scope of Use restrictions.

2.4. Beta Releases and Free Access Subscriptions. Fee Navigator may provide Company with a Fee Navigator Service or Fee Navigator Code for free or on a trial basis (a “Free Access Subscription“) or with “alpha”, “beta”, or other early-stage Fee Navigator Services, Fee Navigator Code, integrations, or features (“Beta Releases“), which are optional for Company to use. This Section applies to any Free Access Subscription or Beta Releases (even if Beta Releases are provided for a fee or count toward Company’s Scope of Use allocations) and supersedes any contrary provision in the Agreement. ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND, AND ANY USE OF BETA RELEASES IS AT COMPANY’S SOLE RISK. Fee Navigator makes no promise that future versions of Beta Releases will be released or made available under the same commercial or other terms, and Fee Navigator may terminate Company’s right to use any Free Access Subscription or Beta Releases at any time for any reason or no reason in its sole discretion, without liability.

2.5. Support and Additional Services. Fee Navigator makes available web-based support through its website. Additional support, onboarding, deployment, and other services may be available to Company upon payment of applicable fees (if any), as specified in Company’s Proposal and subject to Fee Navigator’s applicable support policies. Company may use anything delivered as part of such additional services internally during its Subscription Term to support its authorized use of the Fee Navigator Service, subject to the restrictions in these Fee Navigator Service Terms. Fee Navigator’s ability to deliver services depends on Company’s reasonable and timely cooperation and the accuracy and completeness of any information Company provides.

3. Company Data

3.1. Rights in Company Data. As between the parties, Company retains all right, title, and interest (including any intellectual property rights) in and to the Company Data, all Company Properties, and all content contained within them (excluding any Fee Navigator Technology). Company grants Fee Navigator a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit (including to Third-Party Products), modify, and create derivative works of the Company Data solely to the extent necessary to provide the Fee Navigator Service and related services to Company and as set out in Section 3.2 (Aggregate/Anonymous Data). For Content, this includes the right to publicly display and perform Content on the Company Properties (including derivative works and modifications) as directed by Company through the Fee Navigator Service.

3.2. Aggregate/Anonymous Data. Company agrees that Fee Navigator may generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is Fee Navigator Technology, which Fee Navigator may use for any business purpose during or after the term of the Agreement (including to develop and improve Fee Navigator’s products and services and to create and distribute reports, derivative works, and other materials). Fee Navigator will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Company or Authorized Users and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs).

3.3. Storage. Fee Navigator does not provide an archiving service. During the Subscription Term, Company acknowledges that Fee Navigator may delete Content no longer in active use. Fee Navigator expressly disclaims all other obligations with respect to storage.

3.5. Data Export. Fee Navigator provides Company the ability to export data at any time in the Fee Navigator Service, subject to any fees that may be provided for in the Proposal (if applicable).

4. Company Obligations and Restrictions

4.1. Additional Restrictions. In addition to the restrictions set forth in the General Terms and Conditions, Company must not (and must not allow any third party to): (a) incorporate the Fee Navigator Service (or any portion of it) with, or use it with or to provide, any site, product, or service other than on Company Properties owned and operated by Company and as specifically permitted in these Fee Navigator Service Terms; (b) publicly disseminate information regarding the performance of the Fee Navigator Service (which is deemed Fee Navigator’s Confidential Information) or use the Fee Navigator Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Fee Navigator’s prior written consent; (c) break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the Fee Navigator Service; or (d) distribute any portion of the Fee Navigator Service other than the Fee Navigator Code installed in Company Properties as specifically permitted in these Fee Navigator Service Terms.

4.2. Company Obligations. Company agrees to: (a) not submit, collect, or use any Regulated Data to or with the Fee Navigator Service (including from Third-Party Products); (b) comply with any third-party terms applicable to any Company Apps (such as app store terms) and to any Third-Party Products used in connection with the Fee Navigator Service; and (c) not take any action that would cause Fee Navigator, the Fee Navigator Service, or the Fee Navigator Code to become subject to any third-party terms (including open source license terms). If Company receives any takedown request or infringement notice related to Company Data or its use of Third-Party Products, Company must promptly (i) stop using the related item with the Fee Navigator Service and (ii) notify Fee Navigator.

5. Fee Navigator Technology and Third-Party Products

5.1. Ownership. As between the parties, Fee Navigator (or its suppliers) retains all right, title, and interest (including all intellectual property rights) in and to all Fee Navigator Technology, which is deemed Fee Navigator’s Confidential Information. The Fee Navigator Service (other than the Fee Navigator Code) is offered as an online, hosted product, and Company has no right to obtain a copy of the software behind any Fee Navigator Service. Fee Navigator may make updates, bug fixes, modifications, or improvements to the Fee Navigator Service from time to time.

5.2. Third-Party Products and Integrations. Fee Navigator may employ Third-Party Products embedded or accessed as part of the delivery of its service, such as Optical Character Recognition or Artificial Intelligence (“AI“) providers, transmitting Company Data and receiving certain information extracted from it. Such technologies may be used to extract, classify, summarize, analyze, or otherwise process Company Data in connection with the Fee Navigator Service. If Company uses Third-Party Products in connection with the Fee Navigator Service, those products may make Third-Party Content available to Company and may access Company’s instance of the Fee Navigator Service, including Company Data. Fee Navigator does not warrant or support Third-Party Products or Third-Party Content or AI generated output and disclaims all responsibility and liability for these items and their access to the Fee Navigator Service, including their modification, deletion, disclosure, or collection of Company Data. Company acknowledges that AI-generated output may be inaccurate or incomplete and is responsible for reviewing and validating such output before relying on it. Fee Navigator is not responsible in any way for Company Data once it is transmitted, copied, or removed from the Fee Navigator Service by Company or under Company’s direction.

5.3. Output Disclaimer. Company acknowledges that the Fee Navigator Service generates analyses, insights, reports, and other output based on Company Data and Submitted Data. Fee Navigator does not represent or warrant that any such output, or any Company Data, will be accurate, complete, or preserved without loss. Company is solely responsible for any decisions or actions taken (or not taken) by Company based upon Fee Navigator Technology, the output of the Fee Navigator Service, or Fee Navigator’s related services. This Section supplements the warranty disclaimers in the General Terms and Conditions.

6. Term and Termination

6.1. Subscription Term and Renewals. By executing a Proposal for a Fee Navigator Service, Company agrees to pay the applicable fees for the entire Subscription Term, and Company cannot cancel or terminate a Subscription Term except as expressly permitted by Section 6.3 (Termination for Cause). If no subscription start date is specified on the applicable Proposal, the Subscription Term starts when Company first obtains access to the Fee Navigator Service. Each Subscription Term will automatically renew for additional successive periods unless (i) otherwise stated on the applicable Proposal or (ii) either party gives written notice of non-renewal at least ninety (90) days before the end of the then-current Subscription Term.

6.2. Suspension. In addition to NMI’s suspension rights under the General Terms and Conditions, Fee Navigator may suspend Company’s access to the Fee Navigator Service(s), remove Company Data, or disable Third-Party Products if (a) Company’s account is overdue, (b) Company has exceeded its Scope of Use limits, (c) Company has breached these Fee Navigator Service Terms, or (d) suspension is necessary to prevent harm or liability to other customers or third parties or to preserve the security, stability, availability, or integrity of the Fee Navigator Service. Company will remain responsible for payment of fees during any suspension period. Unless the Agreement has been terminated, Fee Navigator will cooperate with Company to promptly restore access once it verifies that Company has resolved the condition requiring suspension.

6.3. Termination for Cause. Either party may terminate these Fee Navigator Service Terms, including any related Proposal, if the other party fails to cure a material breach (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach. Fee Navigator may also terminate these Fee Navigator Service Terms or any related Proposal immediately if Company breaches Section 4 (Company Obligations and Restrictions) or for repeated violations of the Agreement.

6.4. Effect of Termination. Upon any expiration or termination of these Fee Navigator Service Terms or an applicable Proposal: (a) Company’s license rights terminate and Company must promptly stop all use of the applicable Fee Navigator Service(s) and Fee Navigator Technology, stop distributing any Fee Navigator Code installed on its Company Properties, and delete (or, at Fee Navigator’s request, return) all copies of the Fee Navigator Code and any other Fee Navigator Confidential Information in its possession, custody, or control; and (b) Company’s right to access any Company Data in the applicable Fee Navigator Service will cease, and Fee Navigator may delete the Company Data at any time after thirty (30) days from the date of termination. If Company terminates by non-payment or otherwise, any remaining credits, user accounts, and items of explicit or implied monetary value in Company’s account are automatically forfeited. If Fee Navigator terminates for cause under Section 6.3, any fees for the remaining portion of the Subscription Term become immediately due and payable.

7. Fees

7.1. Fees. Company will pay the fees for the Fee Navigator Service in the amounts and on the terms set forth in the applicable Proposal. Except as set forth in this Section, fees are invoiced in advance as set out in the Proposal, and overages (if applicable) are invoiced monthly in arrears. Payments are non-refundable and non-creditable and payment obligations are non-cancellable, except as expressly provided in these Fee Navigator Service Terms. All other fee and payment terms, including taxes, ACH authorization, late fees, and collection, are governed by the General Terms and Conditions.

8. Additional Terms

8.1. Publicity. Unless otherwise specified in the applicable Proposal, Fee Navigator may use Company’s name, logo, and marks to identify Company as a Fee Navigator customer on Fee Navigator’s websites and other marketing materials.

8.2. Export Compliance. Company is responsible for obtaining any required export or import authorizations for use of the Fee Navigator Service. Company represents and warrants that it, its Affiliates, and its Authorized Users are not on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or designated by the U.S. government as a “terrorist supporting” country. Company must not access or use the Fee Navigator Service in violation of any U.S. export embargo, prohibition, or restriction.

Search results

Master Subscription Agreement (2/8/21)

Definitions.

Services

E-Sign Service.

Dialer Service

Use of the Services

Third­-Party Providers

Fees and Payment for Services

IRIS SECURITY, CONFIDENTIALITY AND NON-SOLICITATION UNDERTAKINGS

Covenants, Representations and Warranties

LIMITATIONS

Indemnification

Term and Termination

License for Marketing and Promotional Activities

General

Terms of Use Free Trial

Services

Dialer Service.

Use of the Services

Third­Party Providers.

Fees and Payment for Services

IRIS SECURITY, CONFIDENTIALITY AND NON-SOLICITATION UNDERTAKINGS

Covenants, Representations and Warranties

LIMITATIONS.

Indemnification

Term and Termination

License for Marketing and Promotional Activities.

General

Terms of Use

ACCORDINGLY, YOU AGREE AS FOLLOWS:

General Terms & Conditions

Updated: March 2021

1. SERVICES

2. FEES; PAYMENT TERMS

3. CONFIDENTIALITY

4. LIMITED WARRANTY

5. INDEMNIFICATION AND INSURANCE

6. LIMITATION OF LIABILITY.

7. TERM

8. PROVISIONS OF GENERAL APPLICABILITY

Updated: May 2019

Agreement Express

Updated: March 2021

1. SERVICES

2. FEES; PAYMENT TERMS

3. CONFIDENTIALITY

4. LIMITED WARRANTY

5. INDEMNIFICATION AND INSURANCE

6. LIMITATION OF LIABILITY.

7. TERM

8. PROVISIONS OF GENERAL APPLICABILITY

Data Processing Addendum

1. Definitions

2. Processing of Data and Compliance with Applicable Laws

3. Security of Personal Data.

4. Subprocessing and Authorized Personnel

5. Personal Data Breach

6. Transfers of Personal Data

7. Rights of Data Subjects.

8. Recordkeeping.

9. Miscellaneous

Exhibit 1

Details of Processing

Exhibit 2

DESCRIPTION OF TRANSFER

COMPETENT SUPERVISORY AUTHORITY

LIST OF SUB-PROCESSORS

Exhibit 3

Exhibit 4 UK Addendum (as applicable)

Part 2: Mandatory Clauses

Entering into this Addendum

Interpretation of this Addendum

Hierarchy

Incorporation of and changes to the EU SCCs

Amendments to this Addendum

Alternative Part 2 Mandatory Clauses:

White Label Template for Partner/Merchant Terms

Partner Terms and Conditions

1. Definitions; Interpretation

Third-Party Providers

ThirdParty Providers.