Terms of Service

Last updated December 1, 2023

Company and Client agree to be bound by, and comply with, the terms of service set forth in the following documents attached hereto and incorporated by reference herein:

General Terms and Conditions

Fee Schedule

SaaS Services

Payment Services

Direct Merchant Agreement

American Express Card Acceptance and Brand Requirements

Itembase Merchant Agreement

Glossary




BILL360 GENERAL TERMS & CONDITIONS

Last updated December 1, 2023

1. Definitions. Capitalized terms used in the Agreement, including these General Terms and Conditions, and not otherwise defined in other sections of the Agreement, shall have the meanings assigned to such terms in the Glossary.

2. Provision of Solutions.

A. Grant of Access and Use. Client acknowledges and agrees that Company has expended, and will continue to expend, considerable resources to develop and maintain unique software and technology made available to Client in the Solutions.  Client acknowledges and agrees that by its payment of the Fees required hereunder and its compliance with the terms and conditions of this Agreement, Company grants Client the time-limited, non-exclusive, non-transferable right to access and use the Solutions and Company Materials during the term of the Agreement, subject in all instances to the terms and conditions set forth in the Agreement. Company does not provide, and Client shall not be required to use, any of the Solutions on an exclusive basis. The Solutions may only be used in the United States.

B. Use Requirements. Client may only use the Solutions for its internal business operations and to process its own Client Data. Client agrees to ensure that its Bill360 User IDs will be used only by an authorized User and not shared with any other employee, agent, or contractor of Client, or any other third-party. Client shall not, and shall ensure that Users (and any of its employees and agents) do not copy any part of the Solutions or Company Materials. Client shall not (a) permit any third parties to use the Solutions other than as specifically permitted in this Agreement; (b) sublicense, rent, or lease the Solutions to a third-party; or (c) attempt to gain unauthorized access to the Solutions or its related systems or networks. Client hereby grants Company access to Client portals, systems, and networks of Client or third parties contracted with Client to the extent reasonably necessary to provide the Solutions to Client and to provide customer and technical support to Client from time to time. Client is responsible for all activities that occur under its assigned Bill360 User IDs and for the Users' compliance with this Agreement. Client further acknowledges and agrees that at no time shall it hold title to or ownership of the Solutions or Company Materials, or be granted any other rights or license to the Solutions or Company Materials or be entitled to download, distribute, install, or otherwise redistribute the Solutions or Company Materials in any form not expressly allowed by this Agreement. Any use of the Solutions for the direct or indirect benefit of a Company competitor is a material breach of this Agreement and is strictly prohibited.

3. Term and Termination.

A. Term and Termination. This Agreement shall commence on the Effective Date and shall continue until terminated by either Party for any reason by providing thirty (30) days prior written notice. Client understands that access to the Solutions and Company Materials ends when this Agreement is terminated. Company may also terminate this Agreement immediately upon written notice to Client in the event Client materially breaches any provision of this Agreement.

B. Effect of Termination. Termination of this Agreement will not relieve Client of any obligation to pay to Company all Fees payable prior to the effective date of termination or that become payable after the effective date of termination but are related to Transactions occurring prior to the effective date of termination.

4. Fees. Fees payable under this Agreement are billed to and payable by Client at the times and by the methods prescribed in the Fee Schedule. Amounts payable under this Agreement are payable in full without deduction or set off of any kind and are net of taxes and customs duties. Client shall be responsible for the payment of all taxes (including, without limitation, sales, use, privilege, ad valorem, excise tax, any value added tax or other withholdings imposed on a Transaction) paid or payable, however designated, levied, or based on amounts payable, or on Client’s use of the Solutions, but exclusive of United States federal, state, and local taxes based on Company’s net income.

5. Compliance with Laws, Rules, and Guidelines. The Parties do and will at all times operate their respective businesses in compliance with applicable Laws, Rules, and Guidelines.

6. Confidential Information and Feedback. Each Party may be given access to Confidential Information of the other Party in order to perform its obligations under this Agreement. Each Party agrees to maintain all Confidential Information in confidence and not disclose any Confidential Information to a third-party or use the Confidential Information except as permitted under this Agreement. Each Party shall take all reasonable precautions necessary to ensure that the Confidential Information is not disclosed by such Party or its employees, agents, or authorized users to any third party. Each Party agrees to promptly notify the other Party of any unauthorized access to or disclosure of Confidential Information. The receiving Party agrees that any breach of this section may cause irreparable harm to the disclosing Party, and such disclosing Party shall be entitled to seek equitable relief in addition to all other remedies provided by this Agreement or available at law. Unless otherwise agreed to in writing, the terms and conditions of this Agreement shall be Confidential Information. Additionally, Client hereby grants Company a worldwide, perpetual, irrevocable, royalty-free license to use, share, exploit and incorporate the Feedback for any purpose without restriction, attribution or payment to Client.

7. Proprietary Rights.

A. Data. Company acknowledges and agrees that Client retains all right, title, and interest in and to the Client Data stored within the Solutions, except to the extent limited by applicable Laws, Rules, Guidelines, or Privacy Policy. Subject to the terms and conditions of this Agreement, Client grants Company a limited, non-exclusive, non-transferable license to copy, store, record, transmit, display, view, print, or otherwise use the Client Data solely to the extent permitted by applicable Laws, Rules, Guidelines, or Privacy Policy. Company may share Data with affiliated third parties for business purposes, but never in a manner prohibited by applicable laws, rules and regulations.  Bill360 may use or share Data in conjunction with providing Solutions to Client and with companies Bill360 includes in ancillary products or services offered in conjunction with the Solutions.  Bill360 will not sell or share Data with unaffiliated companies. Each Party agrees to protect Data in compliance with the terms and conditions set forth in this Agreement, applicable Laws, Rules, Guidelines, and Privacy Policy. Each Party is solely responsible for the security of any Data on its website, servers, or that such Party is otherwise authorized to possess, access or handle. Provided the following are done in full compliance with this Agreement (specifically including the restrictions regarding use of Confidential Information), applicable Laws, Rules Guidelines, and Privacy Policy, Company may (a) process, analyze, and manage Data to provide services to its customers or clients; (b) use or share Data to mitigate fraud, financial loss, or other harm to its customers, clients and itself; and (c) use or share Data to analyze, develop and improve its products, systems, and tools.

B. Company Intellectual Property. Client acknowledges and agrees that Company retains all right, title, and interest in and to the Company Intellectual Property and all improvements, enhancements, modifications, and derivative works of the Company Intellectual Property, including, without limitation, all patent, copyright, trade secret, trademarks, and other intellectual property rights. Client acknowledges and agrees that the Solutions and Company Materials are proprietary products and services and that all right, title and interest in and to the Solutions and Company Materials, including all associated intellectual property rights, are and shall at all times remain with Company and its third-party licensors. The Solutions contain trade secrets and proprietary information owned by Company or its third-party licensors and is protected by applicable Law. Client must treat the Solutions and Company Materials like any other copyrighted material and Client may not copy or distribute the Solutions or Company Materials to any third-party, electronically or otherwise, for any purpose.

C. Company Information. All Company Information and Company Data will remain the exclusive property of Company, and any derivative works of Company Information and Company Data shall vest in and be the exclusive property of Company. Client also grants to Company a perpetual royalty-free license to use or incorporate into the Solutions any suggestions, enhancement requests, recommendations, or other feedback provided by Client or its Users relating to the operation of the Solutions unless otherwise mutually agreed in writing.

D. Client Prohibitions. Except as expressly stated herein, this Agreement does not grant Client or its Users any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of or related to Company’s Intellectual Property. Client agrees that it shall not attempt to copy, modify, duplicate, translate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Company’s Intellectual Property in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Solutions; or access all or any part of the Company’s Intellectual Property in order to build any product or service; or use the Company’s Intellectual Property to provide services to third-parties other than direct Client Customers; or license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Company’s Intellectual Property, or attempt to obtain, or assist third-parties in obtaining, access to Company’s Intellectual Property, other than as provided under this Agreement. Except as otherwise expressly provided, Company grants no express or implied rights under any license, or otherwise, to any of Company's patents, copyrights, trade secrets, trademarks, or other intellectual property rights.

E. Client Administration and Security. Client shall be solely responsible for the actions of all Users. Client is responsible for providing Users with access to the Solutions. Client is also responsible for ensuring that Users comply with this Agreement in all respects. Client shall provide connectivity and security to the Internet for its location(s) for purposes of providing access to the Solutions. Company shall not be responsible for the reliability, speed or continued availability of the communications lines, or the corresponding security configurations used by Client in accessing the Internet to access the Solutions. Client shall be responsible for ensuring that all Client Data is accurate, not corrupt in any way, does not contain vulgar or illegal content, does not infringe the rights of any third party, and does not contain any viruses. Client shall not, and shall be responsible for ensuring that Users do not, intentionally or otherwise, introduce viruses, bugs, errors, inaccuracies, or any malicious software into the Solutions.

8. Third-Party Software; Third-Party Servicers. Client acknowledges that Third-Party Software may be embedded in the Solutions. Client may use the Third-Party Software only in accordance with this Agreement, as a component or part of the Solutions, and for no other purpose. Client agrees to be responsible for the actions of all Third-Party Servicers utilized by Client with regard to its use of the Solutions and the performance of its obligations set forth in this Agreement.

9. Force Majeure. Company shall have no liability to Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Company or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemics, war, riot, civil commotion, malicious damage, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

10. Warranties Limited to this Agreement. Company warrants that it will provide the Solutions in accordance with generally accepted industry standards. If the Solutions do not operate as warranted and Client has provided written notice of the non-conformity to Company, Client shall, at its option and as its sole remedy, terminate this Agreement by providing written notice to Company. The foregoing warranty specifically excludes defects in or non-conformance of the Solutions resulting from (a) use of the Solutions in a manner not in accordance with the terms of this Agreement; (b) modifications or enhancements to the Solutions made by or on behalf of Client; (c) combining the Solutions with products, software, or devices not provided by Company; or (d) Client computer hardware malfunctions, unauthorized repair, accident, or abuse. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SOLUTION WILL MEET CLIENT’S OR ITS CUSTOMERS’ REQUIREMENTS OR THAT USE OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE. Use of any information obtained by way of Company or through the Solutions is at Client’s own risk and Company specifically denies any responsibility for the accuracy or quality of information obtained through its Solutions. Company does not represent guarantees of speed or availability of end-to-end connections and does not warrant that the Client's use of the Solutions will be uninterrupted or error-free; nor that the Solutions, Company Materials and/or the information obtained by the Client through use of the Solutions will meet the Client's requirements.

11. Limitation of Liability. Except as specifically set forth in this Section, in no event shall either Party or its third-party vendors be liable to the other Party or any third party for (a) any special, incidental, indirect or consequential damages, or (b) loss of data, loss of profits, business interruption, or similar damages or loss, even if the Parties and their third-party vendors have been advised of the possibility of such damages, except as limited by applicable Laws. Regardless of the basis for Client's claim, Company’s maximum liability under this Agreement shall be limited to the Fees paid for the Solutions by Client in the prior six months. The foregoing limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy. Notwithstanding anything to the contrary set forth in this Section, the limitations of liability shall not apply with respect to Client in the event Client facilitates, grants, allows or in any manner permits access to Solutions by any Company competitor or other third party for any purpose not expressly permitted herein.

12. Assignment, Transfer of Agreement. Client may not assign or transfer this Agreement or any obligation, right or duty hereunder to a third-party for any reason without the prior written consent of Company.

13. Disputes. If legal proceedings are commenced to resolve disputes arising out of or relating to this Agreement the prevailing Party shall be entitled to recover all reasonable costs, legal fees, and expert witness fees as well as any reasonable costs or legal fees in connection with any appeals. This Agreement and any disputes arising hereunder shall be governed by the laws of the State of Florida. The Parties expressly and irrevocably acknowledge and agree that the federal and state courts located in Tampa, Florida shall be the exclusive venue, and each further agrees to submit to the exclusive jurisdiction of the federal and state courts located in Tampa, Florida relating to any disputes between them arising either directly or indirectly out of or relating to this Agreement. THE PARTIES WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INSTITUTED IN CONNECTION WITH THIS AGREEMENT.

14. Indemnification. Each Party agrees to indemnify, defend, and hold harmless the other Party, its employees, members, directors, managers, officers or agents from and against any loss, liability, damage, penalty or expense (including attorneys' fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by the Party or any employee, agent or Affiliate of the Party to comply with the terms of this Agreement; (ii) any warranty or representation made by the Party being false or misleading; (iii) the manner or method in which the Party performs its services pursuant to this Agreement, (iv) gross negligence of the Party or its subcontractors, agents or employees, or (v) any alleged or actual violations by the Party or its subcontractors, employees or agents of any Laws, Rules or Guidelines.

15. General. If any provision of this Agreement is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby and this Agreement shall be enforced as fully as possible, and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the Parties as expressed herein. The failure by any Party to exercise or any delay in exercising right or power conferred upon it in this Agreement shall not operate as waiver of any such right or power. This Agreement embodies the entire understanding and agreement of the Parties with respect to the subject matter hereof. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not Parties to this Agreement, any rights, or remedies under or by reason of this Agreement. This Agreement may be amended, modified, or changed by Company by written notice to Client, or by posting such amendment, modification or change to Company’s website, and Client agrees to be bound thereto. All Parties represent and warrant that they are authorized to enter into this Agreement in its entirety and duly bind their respective principals by their signatures below. The Parties are independent contractors, and nothing in this Agreement shall be construed to constitute, create, or imply either of them to be a joint venturer, partner, employee, agent, or other representative of the other Party. The Parties shall execute and deliver such other instruments and documents, and take such other actions, as a Party reasonably requests or as are necessary or appropriate to evidence or effect the transactions contemplated by this Agreement. Neither Party shall have authority to make any statements, representations, or commitments of any kind, or to take any action which shall be binding on the other Party, except as may be expressly provided for herein or authorized in writing. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; and (c) singular defined words shall have the same meaning as the plural version of the same word and vice versa. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Any provisions which by their nature should survive termination of this Agreement shall survive, including but not limited to Sections 1, 4, 6, 7, 8, 9, 10, 11, 13, 14, 15 and 16 of these General Terms and Conditions.

16. Notices. Any notice or other communication under this Agreement that is required to be delivered to a Party by written notice shall be in writing and shall be considered effective when (i) delivered personally; (ii) two (2) days after posting if sent by overnight registered private carrier (e.g., DHL, FedEx); or (iii) three (3) days after being mailed by U.S. registered mail, return receipt requested, to the Parties at their respective addresses set forth in the Application (or at such other address as a Party may specify by written notice to the other).

17. Execution in Counterparts. This Agreement may be executed (or accepted electronically, with the same effect as having been physically executed) in counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument.

18. Conflicts. In the event of conflicts among the various schedules of the Agreement, such conflicts will be resolved by giving priority to the schedules in the following descending order: Direct Merchant Agreement, Itembase Merchant Agreement, Payment Services, SaaS Services, and General Terms and Conditions.

 

FEE SCHEDULE

Last updated February 1, 2024

  • SaaS Monthly Software License fee: $10
  • Card Processing Fees:  2.99% + $0.30 per item
  • ACH Processing Fees:  0.30% + $0.30 per item, with a cap of $10 in total ACH Fees per item
  • Chargeback, return and retrieval fee: $25 per occurrence
  • PCI Non-compliance fee: $29.99 per month until compliant
  • Other fees and charges incurred by Company from Processors, Payment Networks and other third parties related to the Agreement


BILL360 SAAS SERVICES

Last updated December 1, 2023

The Bill360 SaaS Services is a cloud-native software application that optimizes the invoice to payment process for Clients and improves real-time communications with those who purchase Client products and services. The SaaS Services shall include Bill360’s proprietary software, programming interfaces, platforms, systems and all other Bill360 applications. Clients are able to create, edit and manage invoices, facilitate billing and payments, communicate with their customers and generate reports. In certain instances, the SaaS Services may utilize data received by Bill360 from various sources to calculate and add sales tax to invoices created in the SaaS Services (collectively, “Sales Tax Calculations”). Clients understand and acknowledge that Bill360 makes no representations or warranties with regard to the accuracy of any Sales Tax Calculations, or whether any Sales Tax Calculations comply with applicable laws, rules, and regulations. Additionally, Bill360 may utilize the SaaS Services or other third-party software or services to provide financial information in addition to Sales Tax Calculations to Client. Client agrees that any such information provided to Client may be shared by Client with third parties only in compliance with the terms and conditions set forth in this Agreement and only for the benefit of Client, not for the benefit of unrelated third parties.



PAYMENT SERVICES

Last updated December 1, 2023

1. Payment Services

The Payment Services are a payment system by which Company, Sponsors and Processors serve as a processing channel with respect to Card Transactions for Client to receive payments on its behalf, and Company serves as a Third-Party Sender with respect to ACH Transactions originated by a Client, pursuant to the terms hereof. Company shall facilitate the processing of Client’s Card Transactions that are originated in accordance with the Rules, as provided herein and otherwise as Company, in its sole discretion, deems appropriate.    

2. Prohibited Activities

It is forbidden for a Client to use Payment Services to assist in any illegal activity or any Prohibited Activity. Likewise, Client may not use Payment Services in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Assets Control (“OFAC”). Client may not itself or through any other person or entity: (i) copy, modify, adapt, translate, reverse engineer, decompile, or disassemble, in any way, any portion of the Payment Services and/or content made accessible by Company including any information, pictures, videos, text, graphics, software programs used by Company in connection with the Payment Services, or publicly display, reproduce, create derivative works from, perform, distribute, or otherwise use any content made accessible by Company, other than as permitted by Company in writing; (ii) make any use of the content and/or Payment Services on any other website or networked computer environment for any purpose, or replicate or copy the content without Company’s prior written consent; (iii) interfere with or violate any other services or Customer's right to privacy or other rights, or harvest or collect Personal Data about Customers of the Payment Services without their express consent, including using any robot, spider, site search or retrieval application, or other manual or automatic device or process to retrieve, index, or data-mine; (iv) defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others; (v) transmit or otherwise make available in connection with the Payment Services any virus, worm, trojan horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (vi) interfere with or disrupt the operation of the Payment Services, or the servers or networks that host the Payment Services or make them available, or violate any requirements, procedures, policies, or regulations of such servers or networks; (vii) sell, license, or exploit for any commercial purposes any use of or access to the Payment Services other than permitted by Company; (viii) forward any Data generated from the Payment Services without the prior written consent of Company; or (ix) sub-license any or all of the Payment Services to any third party.

3. Application

On sign-up and throughout the term of this Agreement, Client shall supply, through the Application and by such other means as Company may require, information concerning the Client, its Guarantor and principals. Client shall notify Company of any changes in such information, especially changes to Client’s bank account(s).  Client shall provide documentary verification as requested from time to time by Company in a manner acceptable to Company.  Company, Processor, and Sponsors reserve the right to verify Client’s identity through other non-documentary methods as deemed appropriate in their sole discretion.  Company, Processors, and Sponsors may retain a copy of any document they obtain to verify Client’s identity.

4. Customers

Client is solely responsible for its goods and services and all customer service issues related thereto including pricing, order fulfillment, order cancellation by Client or the Customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with Client personnel, policies or processes. Client shall indemnify and hold Company, Processors, Sponsors and their respective shareholders, directors, officers and employees harmless from any and all claims, losses or other liabilities arising from or in relation to Client’s relationship with its Customer or any goods or services, including any and all costs associated with the legal defense related to such claims. Each Transaction submitted or processed hereunder shall represent a payment by a Customer to Client. Company and Sponsors make no representation or guarantee with respect to Customer funds availability, that a Transaction will be authorized or processed, or that a Transaction will not later result in a chargeback, Return or Reversal. If Client is a non-profit organization, it shall retain sole and exclusive responsibility for classifying itself and its Transactions, issuing any required reports and receipts, and making any required tax or other filings.

5. Company Regulatory Status

Company is not a bank, money transmitter or other money services business. Payment Services relate solely to the facilitation of Transactions between Customers and the Client pursuant to this Agreement. Company reserves the right to monitor use of the Payment Services by Client and its Customers to ensure compliance with this Agreement, the Rules and applicable Laws. If Company determines that Client is not in compliance with this Agreement, the Rules or applicable Laws, Company reserves the right to take appropriate action including, but not limited to suspending or terminating this Agreement. Company does not at any point hold, own or control funds in connection with the Payment Services, nor does Company transmit money or anything of monetary value. In connection with the Payment Services, Company does not actually or constructively receive, take possession of, or hold any money or anything of monetary value for transmission, and does not advertise, solicit or hold itself out as receiving money for transmission. The Sponsors and their authorized designees have sole responsibility for conducting the settlement of funds with respect to Transactions.

6. Third Party Servicers

Company does not assume any responsibility with regard to the connectivity between Client and any Third-Party Servicer. It is ultimately Client’s responsibility to ensure that Client Transactions reach Company, Processor and the Sponsors in order to receive Payment Services. Client shall not use any Third-Party Servicer unless it has all necessary Payment Network registrations and is fully compliant with applicable Laws and the Rules, as determined by Company. Company is not liable for Third-Party Servicers or their services even if the Payment Services are integrated with them. The inclusion of any link or integration to a Third-Party Servicer does not imply an approval, endorsement, or recommendation by Company. Client agrees that Client accesses any such website at Client’s own risk.

7. Fees

Client shall pay Fees for the Payment Services. Client agrees to establish and maintain one or more bank accounts for use under this Agreement at all times during the term of this Agreement and for a period of 180 days following the termination of this Agreement for any reason. Client shall provide Company with accurate account information for any bank account(s) utilized by Company under this Agreement. Fees shall be paid to Company by offsets from Transaction fund settlements to the Client’s bank account(s), daily ACH billing against Client’s bank account(s), monthly ACH billing against Client’s bank account(s), or any other billing method chosen by Company. If there are insufficient Transaction funds to cover Fees, or if any ACH billing is rejected due to insufficient funds in the Client’s bank account(s), then Client shall pay the Fees immediately. Fees may be calculated on an instantaneous, daily, monthly or other basis, and any total amount of Fees payable by Client to Company for any calculation period that contains (i) a fraction of a cent at or above one half cent will be rounded up to the next full cent, and (ii) a fraction of a cent below one half cent will be rounded down to the next full cent. If Client believes that there is an error associated with any Fees or Client’s Transactions, Client must notify Company in writing within 60 days after the suspected error occurred. Client’s failure to notify Company within such time period will result in Company not being responsible for investigating or effecting any requested adjustments as a result of any error.  

8. Credit Check Consent; Financial Information

In connection with Client procuring Payment Services from Company, Client understands that one or more consumer reports as defined in the FCRA may be obtained by Company from consumer reporting agencies and Client consents to Company obtaining such reports and agrees to provide Company with any information necessary to obtain such reports. Client (which term shall include its shareholders, officers and Guarantors for the purpose of the granting of each consent and authorization in this Section 8) understands that this report may include information with respect to public record information, criminal records, motor vehicle operation history, education records, names and dates of previous employers, reason for termination of employment and work experience, and/or credit worthiness, capacity and standing, character, general reputation, personal characteristics, or mode of living, and that such information may be used to evaluate whether Client is an appropriate candidate for transacting with Company; and this determination may be adverse to Client. Upon written or verbal notice at any time, Client agrees to furnish to Company its recent and/or historical financial statements and other financial information.  From time to time, Company may request credit and other financial information concerning Client, its owners, Guarantors and principals, and Client agrees to furnish the information in a timely manner. If Client utilizes a third-party accounting system that Company has connectivity with, Client authorizes Company to access and use all information contained in such third-party accounting system for purposes of underwriting Client, identity verification and/or fraud analysis purposes. Further, Client agrees to provide Company with prompt written notice of any adverse or material change in Client’s financial condition or business operations that include but is not limited to: any change of business location; any planned or anticipated liquidation; any significant change in the nature of Client’s business; any significant change in the products or services provided by Client; and any material judgment, writ, warrant of attachment, levy or adverse decision against Client affecting its financial condition.  The information obtained will not be provided to any parties other than to Processors, Sponsors, regulatory authorities and/or designated authorized representatives of Company. Client and Guarantors further understand that a consumer reporting agency may not give out information about them to Company without their written consent. Client and each Guarantor hereby authorizes Company now, or at any time while it is party to an agreement with Company or otherwise engaged by Company, to obtain, either directly or through an Affiliate or other third party, consumer reports on Client, such Guarantor, and (to the extent applicable) their respective shareholders, officers and directors. This authorization does not include the release of Client’s medical information. A copy, fax or scan of this consent shall be considered as effective and valid as the original. Client and Guarantors have read and understand the above and authorize Company to perform the above investigations. Client must provide accurate and complete information. If Company cannot verify that this information is complete and accurate, Company may deny Client use of Payment Services.

9. Transaction Authorizations

Client shall not submit Transactions hereunder unless they are submitted in accordance with applicable Laws, the Rules and the Guidelines. If Client desires to submit automatic or recurring Transactions, Client must notify Company in the Application. Sponsors or their authorized designees shall hold, receive, disburse and settle Transaction funds on Client’s behalf.  Client authorizes Sponsors to initiate electronic ACH debit and credit entries to Client’s bank account(s) and to initiate adjustments for any Transactions credited or debited in error. Client agrees to be bound by the Rules. In the event of any inconsistency or conflict between any provision of this Agreement and the Rules, the Rules shall govern.  Client’s authorization will remain in full force and effect until Client notifies Company that Client revokes such authorization. Client understands that Company requires a reasonable time to act on Client’s revocation.

10. Settlement

The Sponsors will transfer funds to the Client's bank account(s) according to this Agreement. If Sponsors cannot transfer the funds to the Client's bank account(s) (due to inaccurate or obsolete bank account information entered by the Client, or for any other reason), Company may refund unused funds to the corresponding Customers or escheat them as required by applicable Laws. None of Sponsors, Company or the Customers will have any liability to Client for funds so refunded. Settlements to a bank account shall be limited or delayed based on Client’s perceived risk and history with Company as determined by the sole and absolute discretion of Company or Sponsors and Company may debit any Client bank account(s) for any reason permitted in this Agreement. Unless otherwise agreed in writing by Company, Transaction settlement shall be by ACH to the Client’s bank account(s).

11. Client Privacy Policy

Client shall post a privacy policy that complies with the Rules and applicable Laws to its website and shall honor the terms thereof.

12. Reserves

Where deemed necessary or appropriate by Sponsors or Company, Sponsors shall create a Reserve in order to protect Sponsors or Company from actual or potential liabilities hereunder. The Reserve will be in an amount determined by Company or Sponsors in its sole and absolute discretion to cover anticipated chargebacks, returns, unshipped products and/or unfulfilled services, Reversals, Returns, or other amounts owing by Client hereunder, or credit risk based on Client processing history. The Reserve may be raised, reduced or removed at any time by Sponsors or Company. Where the Reserve is not adequately funded, Client shall pay all amounts requested by Company for the Reserve within one (1) business day of a request for such amounts and Sponsors and Company may build the Reserve by offsets from Transaction settlements or by debiting any bank account of the Client by ACH. Client grants Company and Sponsors a security interest in and lien on any and all funds held in any Reserve, and also authorizes Company and Sponsors to make any withdrawals or debits from the Reserve, without prior notice to Client, to collect amounts that Client owes Company under this Agreement, including without limitation, for any Reversals or other reversals of deposits or transfers. Client will execute any additional documentation required for Company to perfect Company's security interest in any funds in the Reserve. This security interest survives for as long as Company holds funds in Reserve; however, it does not apply to any funds for which the grant of a security interest would be prohibited by Law. Client irrevocably assigns to Company all rights and legal interests to any interest or other earnings that accrue or are attributable to the Reserve. Client understands and agrees that the funds in the Reserve may be held and maintained at all times during the term of this Agreement and for a period of at least 180 days following termination of this Agreement for any reason, as determined by Company in its sole discretion.

13. Customer Data Security And Compliance

If Client collects, stores, uses or discloses any Customer Data, Client shall, and shall cause its Third-Party Servicers to, comply with PCI DSS and all other applicable Laws and the Rules relating thereto, and shall certify such compliance when requested by Company. Without limiting the foregoing, Client shall comply to the extent applicable with NACHA Rules requiring certain large ACH originators to render account numbers unreadable when stored at rest electronically. Client shall use only PCI DSS compliant Third-Party Servicers in connection with the storage, processing, or transmission of Customer Data and shall be exclusively liable for any security breaches of its systems or any other PCI DSS violations or violations of other applicable Laws or the Rules. Client has exclusive responsibility for security of Customer Data and other information on Client systems or those under its control. Client is aware of and shall comply with all applicable Laws, Rules, and regulations in connection with Client collection, security and dissemination of any personal, financial, or transaction information. Without limitation, Client shall maintain policies and procedures to reduce the risk of loss from transactions that may pose significant fraud, regulatory, or legal risk, or may cause reputational damage to Company or any third party. Client shall maintain adequate security so as to prevent a breach of Customer Data. In the event of any actual or suspected breach of data in possession or control of Client or one of its Third Party Servicers, Client shall immediately notify Company thereof and also comply with all applicable Laws and Rules concerning the breach. If applicable, Client shall obtain from each Customer all consents required under the Rules and applicable Law for the collection, use, storage and disclosure of any and all information provided by Customers or obtained by Client or its agents or Third-Party Servicers under Client’s relationship with its Customer or otherwise. Client shall indemnify and hold Company and Sponsors harmless from and against any liability arising on account of or in relation to the failure by Client to obtain consents from Customers related to their information or cards. In certain circumstances, Client may be eligible for, and may be enrolled in, an insurance program that may cover certain Client costs in the event of breach of data in possession or control of the Client. In the event of such a breach, Client should contact Company for further information. Client acknowledges that if such coverage is in effect, coverage may be based on information provided by Client to Company, and if such information is incorrect, coverage otherwise available may be denied. Client shall hold Company, Sponsor and Processor harmless from any and all claims relating to or arising from Client’s participation or attempted participation in such insurance program. Client expressly consents for Company, Processor, Sponsors and all third parties that assist in the delivery of the Payment Services to collect, use, store and disclose Client information, including that provided in the Application, information concerning Customers, Transactions and the business of the Client in order to supply the Payment Services, improve their products and services, generate reports, to reduce fraud, provide customer support, create and share aggregated data concerning the Payment Services, assess the risk associated with the Client, and in any other manner, subject in all instances to applicable data protection laws. Payment Networks shall have the right to use Client name, address, and Internet addresses and Client authorizes Company to provide any such Payment Networks with any of Client’s information requested by the Payment Network. Company reserves the right, at its sole but reasonable discretion, without prior consent of Client, to make reasonable changes to the Payment Services or implement other risk management controls deemed necessary by Company or its suppliers to manage risk. Client shall comply with all such changes.

14. Taxes

Client has the exclusive responsibility to calculate, charge, collect and remit state and other taxes applicable to its sales of goods and services. Company may have tax reporting responsibilities in connection with the Payment Services such as an Internal Revenue Service report on Form 1099-K.

15. Refunds And Returns

Client agrees to process returns of, and provide refunds and adjustments for goods and services in accordance with this Agreement and the Rules. The Rules require that Client will: (i) maintain a fair return, cancellation or adjustment policy; (ii) disclose Client’s return or cancellation policy to Customers at the time of purchase; (iii) not give cash refunds to a Customer in connection with a Card sale, unless required by Law; and (iv) not accept cash or any other item of value for preparing a Card sale refund. Client’s refund policies must be the same for all payment methods, and should specifically include a requirement for prompt payment of refunds in order to limit chargeback risk.

16. Chargeback Liability

The amount of a Card Transaction may be charged back to Client for a variety of reasons under the Rules. The amount of an ACH Transaction may be subject to Reversal for wrong dollar amount, wrong account number, duplicate transaction or other reasons under the NACHA Rules. Client is responsible for all chargebacks and Reversals, whether or not the chargeback or Reversal complies with the Rules. Client shall immediately pay Company the amount of all chargebacks and related Fees, fines, or penalties assessed by the Sponsors, Processors, Payment Networks or any other third party. If Client does not have sufficient funds in its bank account(s) to pay such amounts, Company can offset the amounts thereof from other Transaction amounts owing to Client hereunder, debit the amount by ACH from the Client's bank account(s) or oblige Client to make immediate payment thereof. If Company determines that Client is incurring an excessive amount of chargebacks, Returns or Reversals, Company or the Sponsors may establish controls or conditions governing Client’s acceptance of Transactions, including without limitation, by: (i) assessing additional Fees; (ii) creating a Reserve in an amount reasonably determined by Company; (iii) delaying payment; and (iv) terminating or suspending the Payment Services. Client shall assist in the investigation of any and all chargebacks, Returns, Reversals and other actual or potential Transaction disputes and shall timely provide such information to Company as Company may request.

17. Recoupment Of Funds Owing To Company

Where amounts are owing by Client to Company hereunder, Company shall have the right to immediately, without prior consent or notice, offset or debit such amounts from funds: (i) deposited by Client; (ii) due to Client under this Agreement; (iii) held in the Reserve; or (iv) available in Client bank account(s), or other payment instrument registered with the Sponsors. Client’s failure to pay in full amounts that Client owes Company on demand will be a breach of this Agreement. Client will be liable for Company costs associated with collection in addition to the amount owed, including without limitation attorneys' fees and expenses, collection agency fees, and interest at the lesser of one-and-one-half percent (1.5%) per month or the highest nonusurious rate permitted by applicable Laws. In its discretion, Company may make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution. Client hereby expressly agrees that all communication in relation to delinquent payments due hereunder will be made as permitted under this Agreement. Such communication may be made by Company or by anyone on its behalf, including but not limited to a third-party collection agent.

18. Recordkeeping

Client shall have exclusive responsibility for: (i) compiling and retaining permanent records of all Transactions and other data, and (ii) reconciling all Transaction information that is associated with Client’s Transactions. Upon five (5) business days’ notice or immediately upon the direction of a Payment Network, a Payment Network, or Company at the direction of a Payment Network, Company may conduct an on-site audit of Client, and Client agrees to cooperate with such audit.

19. Term and Termination

The Agreement shall become effective on the Effective Date and shall terminate as set forth in the General Terms and Conditions. Company and Sponsors have the right to terminate this Payment Services schedule at any time for any reason or for no reason. On any termination hereof, Client shall immediately cease using the Payment Services. Company and Sponsors shall not have any liability to Client resulting from a termination hereof. This Payment Services schedule shall terminate immediately if a Payment Network requires Company to terminate. Sponsors may also withhold such funds pending investigation of Client Transactions or potential liabilities hereunder. On any termination hereof, Client shall remain liable hereunder for any and all Fees or costs accrued prior to or following termination and any other amounts owed by Client to Company, Sponsors or a Payment Network.

20. Marks/IP

Client may use the trademarks and service marks of Company and the Payment Networks as provided by the Rules and subject to the sole discretion and approval of Company.  Upon termination of this Agreement, Client agrees that it shall no longer use such marks or anything similar thereto.  Company reserves all rights not expressly granted to Client in this Agreement. Company owns the title, copyright and other worldwide intellectual property rights in the Payment Services and all copies of the Payment Services. This Agreement does not grant Client any rights to Company's trademarks or service marks, nor may Client remove, obscure, or alter any of Company's trademarks or service marks included in the Payment Services. All comments and suggestions concerning the Payment Services provided to Company shall be the property of Company and Client shall not have any rights therein.

21. Indemnification

Client shall indemnify, defend and hold Company, its Processor, Sponsors, Payment Networks and all third parties that assist in providing the Payment Services, as well as Customers and their respective employees, directors, and agents, harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a third party person or entity that arises out of or relates to: (i) any actual or alleged breach of Client representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of Company policies or the Rules; (ii) Client’s wrongful or improper use of the Payment Services; (iii) any Transaction submitted by Client through the Payment Services (including without limitation the accuracy of any goods or services information that Client provides or any claim or dispute arising out of goods or services offered or sold by Client); (iv) Client’s violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (v) Client’s violation of any applicable Law; or (vi) any other party's access and/or use of the Payment Services with Client’s access credentials.

22. Client Representations

Client represents to Company and Sponsors that: (i) Client is eligible to register and use the Payment Services and has the authority and capacity to enter into and perform under this Agreement; (ii) the name identified by Client when Client registered is Client’s name or business name under which Client sells goods and services; (iii) each Transaction submitted or originated by Client shall represent a bona fide sale by Client; (iv) any Transactions submitted by Client will accurately describe the goods or services sold and delivered to a Customer; (v) each ACH Transaction originated by Client is in accordance with a valid Authorization that complies with all applicable NACHA Rules and that has not been revoked or terminated; (vi) Client shall fulfill all of Client’s obligations to each Customer for which Client submits a Transaction and will resolve any consumer dispute or complaint directly with the Customer; (vi) Client and all Transactions initiated by Client shall comply with all applicable Laws and the Rules; (vii) except in the ordinary course of business, no Transaction submitted by Client through the Payment Services will represent a sale to any principal, partner, proprietor, or owner of Client entity; and (viii) Client will not use the Payment Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Payment Services.

23. No Warranties

THE PAYMENT SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. USE OF THE PAYMENT SERVICES IS AT CLIENT’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PAYMENT SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

24. Limitation Of Liability

COMPANY, ITS PROCESSOR AND SPONSORS SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF SALES, GOODWILL, PROFITS OR REVENUES. COMPANY’S, ITS PROCESSORS’ AND SPONSORS’ LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM SHALL NOT EXCEED $10,000. COMPANY, ITS PROCESSOR AND SPONSORS SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED DIRECTLY OR INDIRECTLY BY: (I) AN ACT OR OMISSION OF CLIENT OR ITS AFFILIATES OR ANY CUSTOMER; (II) CLIENT’S USE OF OR CLIENT’S INABILITY TO USE THE PAYMENT SERVICES; (III) DELAYS OR DISRUPTIONS IN THE PAYMENT SERVICES, (IV) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING THE PAYMENT SERVICES; (V) BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN THE PAYMENT SERVICES; (VI) ACTS OR OMISSIONS OF THIRD PARTIES; (VII) A SUSPENSION OR OTHER ACTION TAKEN IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT; (VIII) COMPANY'S NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR CLIENT’S DIMINISHED ABILITY TO DO BUSINESS AS A RESULT OF CHANGES TO THIS AGREEMENT OR COMPANY’S POLICIES OR PAYMENT SERVICES MADE IN ACCORDANCE WITH THIS AGREEMENT OR APPLICABLE LAW; (IX) BREACHES BY CLIENT OF THIS AGREEMENT; (X) INCORRECT OR INCOMPLETE TRANSACTION INFORMATION; (XI) ACTS OR OMISSIONS OF THIRD PARTY SERVICERS; OR (XII) SPONSORS, COMPANY OR ONE OF COMPANY’S SUPPLIERS ELECTING TO SUSPEND PROVIDING PAYMENT SERVICES IN RESPECT OF CLIENT OR A CUSTOMER ON THE BASIS OF ITS LEGAL, COMPLIANCE, OR RISK POLICIES.

25. Direct Merchant Status

Certain Payment Networks may require that Client enter into a direct contractual relationship with the Sponsors if certain criteria are met.  These criteria are met if the Client processes more than $1,000,000 in payment transactions through Visa or MasterCard in a twelve-month period.  If this happens, Client will immediately and automatically become bound by the Direct Merchant Agreement. If Client becomes bound by the Direct Merchant Agreement, Processor and Sponsors will be the acquirer with regard to those Transactions.  Full contact information for the Sponsors is clearly set out on the first page of the Direct Merchant Agreement.  Importantly, the $1,000,000 threshold for effectiveness of the Direct Merchant Agreement is set by each Payment Network, and each Payment Network may change its threshold for effectiveness of the Direct Merchant Agreement at any time without notice to Client. Until Client processes more than $1,000,000 in payment transactions on a Payment Network (or such other threshold as may be established by that Payment Network), the Direct Merchant Agreement is not effective, and Client does not have a direct legal agreement with the Processor or Sponsors with respect to its Card Transactions hereunder. Additionally, if Client has $1,000,000 or greater in American Express charge volume in a rolling twelve-month period, Client may, in American Express' sole discretion, be converted to a direct card acceptance relationship with American Express and, upon conversion, Client will be bound by the then-current American Express Card Acceptance and Brand Requirements and American Express will set the discount and other fees payable by Client for American Express card acceptance.

26. Client Obligations With Respect to ACH Transactions

Client agrees that with regard to ACH Transactions Client initiates under this Agreement, Client will be deemed to be the Originator of such ACH Transactions.  As the Originator, Client authorizes the ODFI to originate Entries on behalf of the Originator to Receivers’ accounts (the foregoing capitalized terms being used as defined by NACHA pursuant to its Rules). Client further agrees to be bound by all NACHA Rules and further agrees not to originate Entries that violate the laws of the United States. Client shall comply with any restrictions on the types of Entries that may be originated, and understands and agrees that the ODFI has the right to terminate or suspend Client’s rights under this Agreement for breach of the Rules. Client understands and agrees that the ODFI may audit Client’s compliance with the terms and conditions of this Agreement and the Rules. Client agrees that all ACH Transactions that Client initiates will comply with the NACHA Rules and all applicable Laws.  Client shall be primarily liable to Company for any credit entries originated and for any debit entries returned or reversed.  In addition to its other obligations hereunder with respect to Transactions, Client agrees as follows with respect to ACH Transactions: (i) Client shall prepare and submit all electronic entries to Company in accordance with the terms, conditions and specifications set forth herein and as Company may specify from time to time.  Client shall not cancel or amend any entry after its submission to Company other than as permitted by Company in Company’s sole discretion. (ii) Client shall comply at all times with all data security rules promulgated by NACHA.  Without limiting the foregoing, Client shall transmit all entries via a secure electronic network or via a commercially reasonable security technology acceptable to Company and compliant with the NACHA Rules.  Client shall (a) establish, maintain and update commercially reasonable security measures to maintain the confidentiality of Customers’ account numbers, routing numbers, Personal Data, and sales information; and (b) maintain processes and procedures to protect against unauthorized transactions and network infections. (iii) Client shall ensure the correctness, both as to content and form, of all entries and information submitted to Company.  If any information is not readable, out of balance, or not processable, Client shall correct and resubmit the information to Company.  Company is not responsible for detecting any errors in the transmission or content of any entries, including duplicate entries.   Company may reject any entry submitted by Client.  In the event that an entry is rejected for any reason, Client shall remake such entry. (iv) Client shall not originate an ACH Transaction with respect to any Customer until Client has obtained from such Customer an Authorization as required by the NACHA Rules and reasonably acceptable to Company, to make prearranged debits from the Customer’s bank account(s).  Such Authorization may be in the form of either (a) a signed written agreement from the Customer, with a copy thereof given to the Customer, or (b) an electronic record compliant with applicable Law and legally binding in the same manner as are hard copy documents executed by hand signatures, with the electronic record capable of retention by print or otherwise.  Should Client wish to change the amount or date of billing of an ACH Transaction in respect of any Customer, it shall first obtain a new Authorization. (v) Client shall at all times comply with the NACHA Rules with respect to each ACH Transaction and agrees to assume the responsibilities of an “Originator” under the NACHA Rules.  In the event that the operating rules of a local or regional clearing house, or the arrangements between Company and a depository institution, are more restrictive than the NACHA Rules, Client shall comply with such rules. (vi) Client shall not originate any entries that violate the Laws of the United States.  Without limiting the foregoing, Client shall confirm, with respect to each Customer, that U.S. companies are not restricted from doing business with such Customer under rules and regulations of OFAC; and Client shall not originate any Transactions for Customers with respect to which U.S. companies are so restricted. (vii) Company may re-originate an ACH Transaction on Client’s behalf up to two times within 180 days if the initial ACH Transaction was returned for insufficient or uncollected funds. Client may not originate an ACH Transaction for a Customer if an ACH Transaction for that Customer has been returned as unauthorized, until a new Authorization is obtained from that Customer.

27.  Client Obligations With Respect to Card Transactions

Client may set a minimum or maximum Card Transaction amount only in accordance with applicable Laws, the Rules and the Guidelines.  Client shall comply with the Rules, including those posted at the following sites and are incorporated herein by reference: usa.visa.com, www.mastercard.com, www.americanexpress.com and www.discover.com. In the event of any inconsistency or conflict between any provision of this Agreement and the Rules, the Rules shall govern.  Client agrees to comply with the specific requirements set forth in the American Express Card Acceptance and Brand Requirements, regardless of the amount of American Express charge volume.  Client will elect on the Application to accept (full acceptance) or not accept (limited acceptance) cards for payment. Client will accept all valid cards or limit acceptance thereof only in compliance with the Rules. Client will prominently display card signage provided by Company in its place(s) of business and the type of signage displayed will be in accordance with the Payment Networks accepted by Client and if Client participates in full or limited acceptance. Client must not: (i) require a Customer to complete a postcard or similar device that includes the Customer’s account number, card expiration date, signature, or any other card account data in plain view when mailed; (ii) add any tax to Transactions, unless applicable Law expressly requires that Client be permitted to impose a tax. Any tax amount, if allowed, must be included in the Transaction amount and not collected separately; (iii) assess a surcharge to Transactions, except as expressly permitted by, and in full compliance with the Rules; (iv) request or use a card account number for any purpose other than as payment for its goods or services; (v) disburse funds in the form of travelers cheques, if the sole purpose is to allow the Customer to make a cash purchase of goods or services from Client; (vi) disburse funds in the form of cash, unless the Client is dispensing funds in the form of travelers cheque, TravelMoney cards, or foreign currency. In this case, the Transaction amount is limited to the value of the travelers cheques, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Client; (vii) disburse funds in cash unless Client is participating in full compliance with a program supported by a Payment Network for such cash disbursement; (viii) enter into interchange or otherwise originate any Transaction for a Transaction that was previously charged back to the Sponsors and subsequently returned to the Client, irrespective of Customer approval. Client may pursue payment from the Customer outside the Payment Services; (ix) accept a card to collect or refinance an existing debt; (x) accept a card to collect or refinance an existing debt that has been deemed uncollectable by the Client providing the associated goods or services; (xi) enter into interchange a Transaction that represents collection of a dishonored check; (xii) change any aspect of what goods or services it sells or how they are sold without prior written consent of Company and Sponsors; (xiii) retain or store any portion of the magnetic stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by the Rules; or (xiv) submit a transaction that does not result from an act between the Customer and the Client.

28.  Guaranty

The individual executing this Agreement on behalf of Client personally guarantees performance by the Client hereunder, shall be deemed to be a Guarantor for all purposes, and shall be joint and severally liable with Client for all liabilities of the Client hereunder.


DIRECT MERCHANT AGREEMENT

Last updated December 1, 2023

This Sub-Merchant Agreement (Sub-Merchant Agreement) is among Client (Merchant), First Data Merchant Services LLC (First Data), MetaBank, National Association (Bank), and Bill360, Inc. (Company).

1    Services and Roles

1.1    Services.  Merchant and Company entered into the Agreement that allows Company to act as a payment facilitator for authorization, processing, and settlement services (Acquiring Services).  

1.2    Company.  Company will facilitate the provision of the Acquiring Services outlined in the Agreement, including, supporting chargebacks, reporting, status changes, and questions about the Acquiring Services.

1.3    First Data.  First Data and/or Company, through a separate agreement between First Data and Company, will provide the Acquiring Services to Merchant.

1.4    Bank.  Bank is the member of Visa and MasterCard Networks that sponsors Company, First Data, and Merchant’s acceptance of Visa and MasterCard transactions.  Bank will also facilitate a portion of the debit transactions as set forth in the Agreement.  As between Bank and First Data and Bank and Company, only Bank is approved to extend acceptance of Visa and MasterCard transactions directly to Company and/or Sub-Merchant.  Bank is responsible for providing Company (as allowed by the Network Rules) or Merchant with settlement funds for Visa and MasterCard transactions.  The Acquiring Services that Merchant receives from any Network other than Visa, MasterCard, and certain debit Networks are provided by Company and/or First Data and not by Bank.

2    Additional Terms and Conditions

2.1    By entering into this Sub-Merchant Agreement, Merchant agrees to comply with Network Rules, Your Payments Acceptance Guide, and applicable Laws.

2.1.1    Network Rules are the rules, as amended from time to time by the Networks, that govern all Card processing.

2.1.2    Your Payments Acceptance Guide is a summary of the Network Rules provided by First Data for Company and Sub-Merchant.

2.1.3    Laws are all laws, rules, and regulations that are applicable to the parties’ respective performance obligations under this Sub-Merchant Agreement.

2.2    Merchant represents and warrants to First Data, Bank, and Company that the receipt and handling of funds in settlement of transactions processed under the Agreement is solely in payment for Merchant’s provision of bona fide goods and/or services to Merchant’s customers (each, Payor).  Merchant hereby designates Company, and Company hereby agrees to serve, as Merchant’s limited agent for the sole purpose of receiving such payments on Merchant’s behalf from Merchant’s Payors.  Merchant agrees that upon Company receiving payment from a Payor: (a) Merchant shall be deemed to have received payment from such Payor; (b) such Payor’s obligation to Merchant in connection with such payment shall be satisfied in full; (c) any claim Merchant has for such payment against such Payor shall be extinguished; and (d) Merchant is obligated to deliver the applicable goods and/or services to the Payor, in each case regardless of whether or when Company remits such payment to Merchant.  Company will remit to Merchant in accordance with the Agreement, or apply as an offset to any obligation Merchant may have to Company, any such payments Company receives on Merchant’s behalf.  Merchant shall identify to its Payors that Company is acting as Merchant’s agent for purposes of receiving payment on Merchant’s behalf.  Any receipt provided to the Payor shall be binding on Merchant and shall satisfy all applicable regulatory requirements.  This Section states the entirety of Company’s duties as Merchant’s agent for receipt of payment, and no other duties shall be implied by Company’s undertaking to act in that capacity.  

2.3    Additional Terms.

2.3.1    Card means a card, code, device, or other means allowing access to a credit, debit, prepaid, stored value, or similar account.

2.3.2    Cardholder means the individual who was issued a Card.

2.3.3    Settlement Account means a settlement account in which First Data, Bank, or Company will settle the transaction funds.

3    Settlement; Chargebacks

3.1    Upon First Data’s receipt of the Transaction data for Card Transactions, First Data will process the Transaction data to facilitate the funds transfer from the various Networks for Card sales.  After First Data receives credit for such Transaction data, subject to each party’s other rights under this Sub-Merchant Agreement, First Data, Bank, or Company (either itself or through a licensed money transmitter) will provide provisional credit to Merchant’s Settlement Account.  Merchant agrees that it will not submit Transactions for payment until the goods are delivered, shipped, or the services are performed.  If the Cardholder disputes charges for merchandise or services before receiving them, a chargeback may result.

3.2    Merchant is solely responsible to pay the amount of any chargebacks resulting from Transactions submitted by Merchant under this Agreement.  Chargebacks can occur for a number of reasons.  The following are some of the most common reasons for chargebacks: (1) a refund is not issued to Payor upon the return or non-delivery of goods or services; (2) an authorization/approval code was required and not obtained; (3) the Transaction was allegedly fraudulent; (4) Payor disputes the Card sale or the signature on the sale documentation or claims that the sale is subject to a set-off, defense, or counterclaim; or (5) Payor refuses to make payment for a Card sale because, in Payor's good faith opinion, a claim or complaint has not been resolved or has been resolved but in an unsatisfactory manner.

4    Fees Pursuant to the Fee Schedule and the General Terms and Conditions of the Agreement, Merchant agrees to pay Company the fees associated with the provision of the services under this Sub-Merchant Agreement.

5    Reserve

5.1    In addition to any holdback and/or reserve rights that Company may have in the Agreement, Bank or First Data may require Merchant to fund a cash reserve (Reserve) in an amount that reflects Bank’s or First Data’s assessment of risk, as each may determine in its discretion from time-to-time.  The Reserve is a payment obligation of Bank and First Data, established by holding back Transaction proceeds or debiting the Merchant Settlement Account in order to potentially offset any obligations that Merchant may have to Bank or First Data.  The Reserve is not a segregated fund that Merchant may claim to own. Bank and First Data are obligated to pay to Merchant any amounts remaining from the Reserve after all other then-current and contingent liabilities or obligations related to Merchant’s payment Transactions have expired (as provided for under the Network Rules).

5.2    The obligations due to Merchant from the Reserve will not accrue interest unless required by applicable Laws.

5.3    Bank or First Data will notify Merchant if a Reserve is established (including its amount) or if the amount of the Reserve is modified.

5.4    Bank or First Data may set off any obligations that Merchant owes to Bank or First Data from the Reserve.

5.5    Although Merchant acknowledges that the Reserve is a general obligation of Bank and First Data, and not a specifically identifiable fund, if any person claims that the Reserve is an asset of Merchant that is held by Bank or First Data, Merchant grants and acknowledges that Bank and First Data have a security interest in the Reserve and, at Bank’s or First Data’s request, will provide documentation to reflect this security interest.

5.6    Set-off.  All funds that Bank or First Data owe to Merchant under this Sub-Merchant Agreement are subject to Merchant’s payment obligations under this Sub-Merchant Agreement.  Bank or First Data may set off amounts Merchant owes to either or both of Bank or First Data against any funds that either or both of Bank or First Data owe to Merchant.

6    Data Security Merchant represents that it does not have access to Card information (such as the cardholder’s account number, expiration date, and CVV2) and will not request access to such Card information from First Data or Bank.  In the event that Merchant receives such Card information in connection with the services provided under this Sub-Merchant Agreement, Merchant agrees not to use it for any fraudulent purpose or in violation of any Network Rules, including but not limited to Payment Card Industry Data Security Standards (PCI DSS) or applicable Law.  If at any time Merchant has reason to believe Card information has been compromised, Merchant will notify First Data and Bank promptly and assist in providing notification to the proper parties.  Merchant will ensure its compliance and the compliance of any Third Party Servicer utilized by Merchant with all security standards and guidelines that are applicable to Merchant or such Third Party Servicer and published from time to time by Visa, MasterCard, or any other Network, including without limitation, the Visa U.S.A. Cardholder Information Security Program (CISP), the MasterCard Site Data Protection (SDP), and (where applicable) the PCI Security Standards Council, Visa, and MasterCard PA-DSS (Payment Application Data Security Standards) (collectively, the Security Guidelines).  If any Network requires an audit of Merchant due to a data security compromise event or suspected event, Merchant will cooperate with such audit.  Merchant may not use any Card information other than for the sole purpose of completing the Transaction authorized by the Payor for which the information was provided or as specifically allowed by Network Rules, Your Card Acceptance Guide, or required by applicable Laws. Merchant will reimburse First Data and/or Bank for all fines, fees, penalties, assessments, or other obligations of any kind imposed by a Network or a regulator on First Data or Bank due to a data security compromise event (i) caused by Merchant or its Third Party Servicers; or (ii) that otherwise takes place on Merchant or its Third Party Servicers systems to the extent not caused by First Data or Bank.

7    Financial Information; Audit Merchant will promptly provide any financial or other information reasonably requested by First Data, Bank, or Company to perform credit risk, security, qualification, and other reviews related to the provision of the services, Transactions submitted, fulfillment of obligations to Company, First Data, Bank, or Cardholders, or the financial condition of Merchant.  Merchant authorizes Company and First Data to obtain information from third parties when performing credit risk, security, qualification, and other reviews.  Company, First Data, Bank, or their designees may perform a reasonable audit of Company’s records related to its performance under this Sub-Merchant Agreement with 30 days’ advance written notice to Merchant, during Merchant’s normal business hours, and at Company’s, First Data’s or Bank’s expense, as applicable.

8    Notice of Material Change; Third Parties Merchant will provide Company and First Data with reasonable advance notice of any material change in the nature of Merchant’s business (including any change in control or merger, any liquidation, any transfer or sale of substantially all of its assets, or any change to Merchant’s operations that would materially affect the products or services sold, the procedures for payments acceptance, or the fulfillment of obligations to a Cardholder).  Merchant will provide Company and First Data with written disclosure identifying the third parties, systems, and services Merchant uses to receive, transmit, process, or otherwise manage information or its information technology systems (e.g., without limitation, encryption or firewall providers) related to the Transaction information or payment data processed in connection with this Sub-Merchant Agreement (these third parties must be registered providers with the Networks).

9    Exclusion of Damages Bank, First Data, and Company are not liable under any theory of tort, contract, strict liability, or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect, or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages.

10    Limitation of Liability Bank, First Data, and Company, in the aggregate (inclusive of any and all claims made by Merchant, whether related or unrelated) for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this Sub-Merchant Agreement) and regardless of the form of action or legal theory shall not exceed the lesser of (i) $100,000; or (ii) the amount of fees received by Company for services provided under this Sub-Merchant Agreement in the immediately preceding 12 months.

11    Indemnification Merchant will indemnify Company, First Data, and Bank (including their respective affiliates, directors, officers, managers, and employees) for losses, damages, costs, or expenses (together, Losses) due to third party claims that result from Merchant’s or Merchant’s Third Party Servicer’s gross negligence, willful misconduct, or breach of this Sub-Merchant Agreement.  The indemnified party will promptly notify Merchant of any third party claim that is subject to indemnification under this Sub-Merchant Agreement.  The indemnifying party will have the opportunity to defend these claims using counsel it selects and will have the authority to enter into a settlement for monetary damages provided that it pays such amounts to the indemnified party.  The parties will cooperate with regard to any other conditions of settlement as well as in providing records and access to personnel or other information reasonably necessary to defend any indemnified claims.

12    Assignment Bank or First Data may each, in whole or in part, assign or transfer this Sub-Merchant Agreement or delegate or subcontract its respective rights, duties, or obligations under this Sub-Merchant Agreement without Merchant’s or Company’s consent.  Merchant further acknowledge that another financial institution may be substituted for Bank with respect to Bank’s obligation.

13    Confidentiality

13.1    Confidentiality.  No party will disclose non-public information about another party’s business (including the terms of this Sub-Merchant Agreement, technical specifications, customer lists, or information relating to a party’s operational, strategic, or financial matters) (together, Confidential Information).  Confidential Information does not include information that: (1) is or subsequently becomes publicly available (through no fault of the recipient); (2) the recipient lawfully possesses before its disclosure; (3) is independently developed without reliance on the discloser’s Confidential Information; or (4) is received from a third party that is not obligated to keep it confidential.  Each party will implement and maintain reasonable safeguards to protect the other party’s Confidential Information.

13.2    Disclosure.  The recipient may disclose another party’s Confidential Information: (1) to its directors, officers, personnel, and representatives (including those of its subsidiaries, affiliates, subcontractors, or vendors) that need to know it in connection with the recipient’s performance under this Sub-Merchant Agreement and that are bound by confidentiality obligations materially similar to those required under this Sub-Merchant Agreement; and (2) in response to a subpoena, court order, request from a regulator, or as required under applicable Laws or Network Rules.

14    Term; Termination  

14.1    Term.  This Sub-Merchant Agreement shall be in effect upon acceptance by all parties and shall remain effective for the term of the Agreement unless terminated earlier pursuant to the terms of this Sub-Merchant Agreement.

14.2    Termination.  In addition to the termination rights in the Agreement, Bank and/or First Data may terminate this Sub-Merchant Agreement without advance notice for any other reason, without cause.

15    MATCH Reporting If this Sub-Merchant Agreement is terminated for cause, Merchant acknowledges that Bank or First Data may be required to report Merchant’s business name and the names and other identification of Merchant’s principals to the Networks.  Merchant expressly agrees and consents to such reporting in the event Merchant is terminated as a result of Bank’s, First Data’s, or Company’s termination for cause or for any reason specified by the Network(s) as cause.  Furthermore, Merchant agrees to waive and hold Bank and First Data harmless from and against any and all claims which Merchant may have as a result of such reporting.

16    Arbitration    

16.1    This arbitration provision will be broadly interpreted.  If Merchant has a dispute with First Data or Bank that cannot be resolved informally, Merchant, Bank, or First Data may elect to arbitrate that dispute in accordance with the terms of this arbitration provision rather than litigate the dispute in court.

16.2    The parties agree that the following will not be subject to arbitration: (a) disputes relating to the scope, validity, or enforceability of this arbitration provision; (b) any claim filed by either party in which the amount in controversy is properly within the jurisdiction of a small claims court; and (c) any dispute related to the validity of any party’s intellectual property rights.

16.3    If a party elects to resolve the dispute through arbitration pursuant to this arbitration provision, the party initiating the arbitration proceeding must open a case with the American Arbitration Association - Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043, 877-495-4185, www.adr.org.

16.4    Because the services provided to Merchant under this Sub-Merchant Agreement concern interstate commerce, the Federal Arbitration Act (FAA) will govern this arbitration provision, including the issue of whether the dispute is subject to arbitration.  The Commercial Arbitration Rules of the American Arbitration Association (AAA) will govern any arbitration.  If there is a conflict between this arbitration provision and the AAA Rules, this arbitration provision will govern.  If the AAA will not administer a proceeding under this arbitration provision as written, it cannot serve as the arbitration organization to resolve the dispute.  If this situation arises, the parties will agree on a substitute arbitration organization.  If the parties are unable to agree, the parties will mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this arbitration provision as written.  If there is a conflict between this arbitration provision and the rest of this Sub-Merchant Agreement, this arbitration provision will govern.

16.5    A single arbitrator will resolve the dispute.  The arbitrator will honor claims of privilege recognized by applicable Law and will take reasonable steps to protect each party’s information and other confidential or proprietary information.  If the claim alleged in the dispute is for $10,000 or less and the dispute is not excluded based on Section 16.2 above, Merchant may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the rules of the selected arbitration organization.  The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party.  An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement.

16.6    If an award granted by the arbitrator exceeds $50,000, either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within 30 days from the date of entry of the written arbitration award.  The arbitration organization will then notify the other party that the award has been appealed.  The members of the three-arbitrator panel will be selected according to the AAA’s Commercial Arbitration Rules.  The three-arbitrator panel will issue its decision within 120 days of the date of the appealing party’s notice of appeal.  The decision of the three-arbitrator panel will be final and binding, except for any appellate right which exists under the FAA.

16.7    All parties to an arbitration must be individually named.  There will be no right or authority for any claims to be arbitrated or litigated on a class action, joint, or consolidated basis or on a basis involving claims brought in a purported representative capacity on behalf of the general public (such as a private attorney general), other clients, or persons.

16.8    The arbitrator may award injunctive or similar relief only in favor of the individually named party and only to the extent necessary to provide relief warranted by that individual party’s claim.  The arbitrator may not award injunctive relief applicable to any class or similarly situated individual or groups.

16.9    The arbitration will take place in Suffolk County, NY.

16.10    Bank or First Data will pay arbitration filing fees and arbitrator’s costs and expenses of which Merchant provides notice to Bank or First Data prior to the commencement of the arbitration.  Merchant is responsible for all additional costs that Merchant incurs in the arbitration, including fees for attorneys or expert witnesses.  If the arbitration is resolved in Bank and First Data’s favor, Merchant will reimburse Bank and First Data for the filing fees and costs paid to Merchant only up to the extent awardable in a judicial proceeding.  If the arbitration is resolved in Merchant’s favor, Merchant will not be required to reimburse Bank or First Data for any of the fees and costs paid by Bank or First Data.  Notwithstanding anything to the contrary in this arbitration provision, Bank or First Data will pay all fees and costs that Bank or First Data are required by applicable Law to pay.

16.11    If Merchant does not wish to arbitrate disputes, Merchant must notify Bank and First Data in writing within 30 days of the date that Merchant first receives this Sub-Merchant Agreement by writing a notice including Merchant’s name, address, and account number, as well as a clear statement that Merchant does not wish to resolve disputes through arbitration and sending that notice (a) by e-mail to arbitrationoptout@firstdata.com; (b) by fax to 402-916-2200; or (c) by mailing to “Arbitration Opt Out Notice, 3975 N.W. 120th Ave, Coral Springs, FL 33065 (These Fax Numbers and Addresses are only for submitting the notice described in this Section).  Merchant’s decision to opt out of arbitration will have no adverse effect on Merchant’s relationship with Bank, First Data, or the services provided under this Sub-Merchant Agreement.

16.12    If a court of competent jurisdiction finds any part of Section 16.7 to be illegal or unenforceable, the entire arbitration provision will be unenforceable, and the dispute will be decided by a court.  If any other clause in this arbitration provision is found to be illegal or unenforceable, that clause will be severed from this arbitration provision, and the remainder of this arbitration provision will be given full force and effect.

16.13    Merchant, First Data, and Bank have each agreed to waive the right to trial by jury.

17    Choice of Law The parties acknowledge and agree that all disputes and this Sub-Merchant Agreement will be governed by, and construed in accordance with, New York law (exclusive of any conflicts and choice of law rules set forth therein).

18    Notices  

18.1    Notice to First Data will be sent to: First Data Merchant Services LLC, Attn: Executive Vice President – Operations, 5565 Glenridge Connector NE, Atlanta, Georgia 30342; with a copy to: First Data Merchant Services LLC, Attn: General Counsel’s Office, 6855 Pacific Street, AK-32, Omaha, NE 68106.  Emailed notices to First Data will be sent to: legalpapers@firstdata.com.

18.2    Notice to Bank will be sent to: MetaBank, Attn: Vice President - Operations, 5501 South Broadband Lane, Sioux Falls, South Dakota 57108; with a copy to: MetaBank, Attn: Legal, 5501 South Broadband Lane, Sioux Falls, South Dakota 57108.

18.3    Notice to Company will be sent to: Bill360, Inc., Attn: General Counsel, 4350 W. Cypress St., Suite 701, Tampa, FL 33607

18.4    Notice to Merchant will be sent to the most current address on file with the Company.

19    Publicity No party will make any press release or other public disclosure concerning the terms and conditions of this Sub-Merchant Agreement without the prior written consent of the other party.

20    Entire Agreement; Waiver This Sub-Merchant Agreement constitutes the entire agreement between the parties with respect to the subject matter discussed in this Sub-Merchant Agreement and supersedes any previous agreements and understandings.  Except as provided in this Sub-Merchant Agreement, this Sub-Merchant Agreement can be changed only by a written agreement signed by all parties.  A party's waiver of a breach of any term or condition of this Sub-Merchant Agreement will not be deemed a waiver of any subsequent breach of the same or another term or condition.


AMERICAN EXPRESS CARD ACCEPTANCE AND BRAND REQUIREMENTS

Last updated December 1, 2023

In the event Client (Merchant for purposes of this Exhibit) accepts American Express, the Agreement must contain the following terms and conditions. Further, Merchant agrees to comply with the terms of the Agreement and the American Express Merchant Operating Guide, as such terms may be amended from time to time.

The following will only apply to Merchant’s participation in the American Express Program, as controlled by the American Express OptBlue Program Operating Regulations. Capitalized terms in this Exhibit are defined in the American Express Merchant Requirements or the American Express OptBlue Program Operating Guidelines.

Merchant hereby authorizes Processer (as defined by the American Express Program) to submit Transactions to, and receive settlement from, American Express on behalf of the Merchant. If Merchant is placed in the American Express Program, Merchant shall be responsible for complying with the provisions set forth in Exhibit 1 attached hereto and the American Express Merchant Regulations (located at www.americanexpress.com).

Acquirer may collect and disclose Transaction Data, Merchant Data, and other information about the Merchant to American Express; and American Express may use such information to perform its responsibilities in connection with the Program, promote the American Express Network, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communication purposes within the parameters of the Agreement and important transactional or relationship communications from American Express. If Merchant opts out of receiving future commercial marketing communications from American Express, Merchant must notify Company by emailing support@bill360.com.  Note that Merchant may continue to receive marketing communications until American Express updates its records to reflect Merchant’s choice.  Opting out of commercial marketing communications will not preclude Merchant from receiving important transactional or relationship messages from American Express. American Express may use the information from the Agreement at the time of setup to screen and/or monitor Merchant in connection with Card marketing and administrative purposes.

Merchant may be converted from the American Express Program to a direct Card acceptance relationship with American Express if and when Merchant has $1,000,000  or greater in Charge Volume in a rolling twelve (12) month prior. Upon conversion, (i) the Merchant will be bound by American Express’ then-current Card Acceptance Agreement; and (ii) American Express will set pricing and other fees payable by the Merchant for Card acceptance.

Merchant shall not assign to any third party any payments due to it under the Agreement or any Card Acceptance Agreements, and all indebtedness arising from Charges will be for bona fide sales of goods and services (or both) at its Establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the Merchant may sell and assign future Transaction receivables to Acquirer, its affiliated entities and/or any other cash advance funding source that partners with Acquirer or its affiliated entities, without consent of American Express.

Third-party beneficiary rights may be conferred to American Express, but not obligations to the Agreement, providing American Express the ability to enforce the terms of the Agreement against the Merchant in association with the American Express Program only.

Merchant may elect to opt out of accepting American Express Cards at any time without directly or indirectly affecting its rights to accept other payment products by notifying Acquirer.

Processor may terminate the Merchant’s right to accept American Express Cards if it breaches any of the provisions in this Section or Exhibit 1.

Acquirer has the right to immediately terminate a Merchant from the American Express Program for cause, fraudulent or other activity, or upon American Express’ request.

Merchant may not bill or collect from any American Express cardholder for any purchase or payment on the Card unless Chargeback has been exercised, the Merchant has fully paid for such Charge, and it otherwise has the right to do so.

Merchant shall comply with all applicable laws, rules, and regulations in conducting its business.
Merchant must comply with DSR, PCI DSS and all other applicable laws and rules relating thereto.  Further, Merchant will provide specific and adequate disclosures to customers of collection, use, and processing of personal data.  Merchant will ensure that customer information is processed promptly, accurately and completely, and complies with the American Express Technical Specifications.

In the event of any actual or suspected breach of data in possession or control of Merchant or one of its Third Party Servicers, Merchant shall immediately notify Company thereof and also comply with all applicable laws and rules concerning the breach.

Upon termination of the Agreement or termination of Merchants participation in the Program, Merchant must remove any and all American Express Licensed Marks from the Merchants Website and wherever else the American Express Marks are displayed.

Exhibit 1

American Express Program General Merchant Requirements

A. Card Acceptance

Merchant must accept the Card as payment for goods and services sold, or (if applicable) for charitable contributions made, at all of its Establishments, except as expressly permitted by state statute. Merchant is jointly and severally liable for the obligations of Merchants Establishments under the Agreement.

B. Treatment Of The American Express Brand

Except as expressly permitted by Applicable Law, Merchant must not:

  1. indicate or imply that it prefers, directly or indirectly, any Other Payment Products over the Card,
  2. try to dissuade Card Members from using the Card,
  3. criticize or mischaracterize the Card or any of American Express services or programs,
  4. try to persuade or prompt Card Members to use any Other Payment Products or any other method of payment (e.g., payment by check),
  5. impose any restrictions, conditions, disadvantages or fees when the Card is accepted that are not imposed equally on all Other Payment Products, except for electronic funds transfer, or cash and check,
  6. suggest or require Card Members to waive their right to dispute any Transaction,
  7. engage in activities that harm the American Express business or the American Express Brand (or both),
  8. promote any Other Payment Products (except Merchants own private label card that Merchant issues for use solely at Merchants Establishments) more actively than Merchant promote the Card, or
  9. convert the currency of the original sale Transaction to another currency when requesting Authorization or submitting Transactions (or both).
    Merchant may offer discounts or in-kind incentives from Merchants regular prices for payments in cash, ACH funds transfer, check, debit card or credit/charge card, provided that (to the extent required by Applicable Law): (i) Merchant clearly and conspicuously disclose the terms of the discount or in-kind incentive to Merchants customers, (ii) the discount or in-kind incentive is offered to all of Merchants prospective customers, and (iii) the discount or in-kind incentive does not differentiate on the basis of the issuer or, except as expressly permitted by applicable state statute, payment card network (e.g., Visa, Mastercard, Discover, JCB, American Express). The offering of discounts or in-kind incentives in compliance with the terms of this paragraph will not constitute a violation of the provisions set forth above in this Section B., Treatment of the American Express Brand.

C. Treatment Of The American Express Marks

Whenever payment methods are communicated to customers, or when customers ask what payments are accepted, Merchant must indicate Merchants acceptance of the Card and display our Marks (including any Card application forms provided to Merchant) as prominently and in the same manner as any Other Payment Products. Merchant must not use the American Express Marks in any way that injures or diminishes the goodwill associated with the Mark, nor (without prior written consent from Processor) indicate that American Express endorses Merchants goods or services. Merchant shall only use the American Express Marks as permitted by the Agreement and shall cease using our Marks upon termination of the Agreement.

D. Treatment Of American Express Card Member Information

Any and all Card Member Information is confidential and the sole property of the Issuer (as defined by the American Express Program), American Express or its Affiliates. Except as otherwise specified, Merchant must not disclose Card Member Information, nor use nor store it, other than to facilitate Transactions at Merchants Establishments in accordance with the Agreement.

E. Arbitration Agreement (As To Claims Involving American Express)

In the event that Merchant or Processor is not able to resolve a Claim against American Express, or a claim against Processor or any other entity that American Express has a right to join, this section explains how Claims may be resolved through arbitration. Merchant or American Express may elect to resolve any Claim by binding individual arbitration. Claims will be decided by a neutral arbitrator.
If arbitration is elected by any party, neither Merchant nor Processor nor American Express will have the right to litigate or have a jury trial on that Claim in court. Further, Merchant, Processor, and American Express will not have the right to participate in a class action or in a representative capacity or in a group of persons alleged to be similarly situated pertaining to any Claim subject to arbitration under this Agreement. Arbitration procedures are generally simpler than the rules in court. An arbitrators decisions are final and binding, and the arbitrators final decision on a Claim generally is enforceable as a court order with very limited review by a court. Other rights Merchant, Processor, or American Express would have in court may also not be available in arbitration.

i. Initiation of Arbitration. Claims may be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration Agreement and the selected organizations rules in effect when the Claim is filed, except where those rules conflict with this Agreement. Contact JAMS or AAA to begin an arbitration or for other information. Claims may be referred to another arbitration organization if all parties agree in writing, if American Express selects the organization and Merchant selects the other within 30 days thereafter or if an arbitrator is appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. 1-16 (FAA). Any arbitration hearing will take place in the federal judicial district where Merchants headquarters is located or New York, NY, at Merchants election.

ii. Limitations on Arbitration. If any party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. No Claim is to be arbitrated on a class or purported representative basis or on behalf of the general public or other persons allegedly similarly situated. The arbitrators authority is limited to Claims between Merchant, Processor, and American Express. An arbitration award and any judgment confirming it will apply only to the specific case brought by Merchant, Processor or American Express and cannot be used in any other case except to enforce the award as between Merchant, Processor and American Express. This prohibition is intended to, and does, preclude Merchant from participating in any action by any trade association or other organization against American Express. Notwithstanding any other provision in this Agreement, if any portion of these Limitations on Arbitration is found invalid or unenforceable, then the entire Arbitration Agreement (other than this sentence) will not apply, except that Merchant, Processor, and American Express do not waive the right to appeal that decision.

iii. Previously Filed Claims/No Waiver. Merchant, Processor, or American Express may elect to arbitrate any Claim that has been filed in court at any time before trial has begun or final judgment has been entered on the Claim. Merchant, Processor, or American Express may choose to delay enforcing or to not exercise rights under this Arbitration Agreement, including the right to elect to arbitrate a claim, without waiving the right to exercise or enforce those rights on any other occasion. For the avoidance of any confusion, and not to limit its scope, this section applies to any class-action lawsuit relating to the Honor All Cards, non-discrimination, or no steering provisions of the American Express Merchant Regulations, or any similar provisions of any prior American Express Card acceptance agreement that was filed against American Express prior to the Effective Date of the Agreement to the extent that such claims are not already subject to arbitration pursuant to a prior agreement between Merchant and American Express.

iv. Arbitrators Authority . The arbitrator will have the power and authority to award any relief that would have been available in court and that is authorized under this Agreement. The arbitrator has no power or authority to alter the Agreement or any of its separate provisions, including this arbitration agreement.

v. Split Proceedings for Equitable Relief. Merchant, Processor, or American Express may seek equitable relief in aid of arbitration prior to arbitration on the merits if necessary to preserve the status quo pending completion of the arbitration. This section shall be enforced by any court of competent jurisdiction, and the party seeking enforcement is entitled to seek an award of reasonable attorney’s fees and costs to be paid by the party against whom enforcement is ordered.

vi. Small Claims. American Express will not elect arbitration for any Claim Merchant properly files in a small claims court so long as the Claim seeks individual relief only and is pending only in that court.

vii. Governing Law/Arbitration Procedures/Entry of Judgment. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce and is governed by the FAA. The arbitrator shall apply New York law and applicable statutes of limitations and honor claims of privilege recognized by law. The arbitrator shall apply the rules of the arbitration organization selected, as applicable to matters relating to evidence and discovery, not federal or any state rules of procedure or evidence, provided that any party may ask the arbitrator to expand discovery by making a written request, to which the other parties will have 15 days to respond before the arbitrator rules on the request. If Merchants Claim is for $10,000 or less, Merchant may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the rules of the selected arbitration organization. At the timely request of a party, the arbitrator will provide a written opinion explaining his/her award. The arbitrators decision will be final and binding, except for any rights of appeal provided by the FAA. Judgment on an award rendered by the arbitrator may be entered in any state or federal court in the federal judicial district where Merchants headquarters or Merchants assets are located.

viii. Confidentiality. The arbitration proceeding and all information submitted, relating to or presented in connection with or during the proceeding, shall be deemed confidential information not to be disclosed to any person not a party to the arbitration. All communications, whether written or oral, made in the course of or in connection with the Claim and its resolution, by or on behalf of any party or by the arbitrator or a mediator, including any arbitration award or judgment related thereto, are confidential and inadmissible for any purpose, including impeachment or estoppel, in any other litigation or proceeding; provided, however, that evidence shall not be rendered inadmissible or non-discoverable solely as a result of its use in the arbitration.

ix. Costs of Arbitration Proceedings. Merchant will be responsible for paying Merchants share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees Merchant would have incurred if Merchant had brought a claim in court. American Express will be responsible for any additional arbitration fees. At Merchants written request, American Express will consider in good faith making a temporary advance of Program Merchants share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.

x. Additional Arbitration Awards. If the arbitrator rules in Merchants favor against American Express for an amount greater than any final settlement offer American Express made before arbitration, the arbitrators award will include: (1) any money to which Merchant is entitled as determined by the arbitrator, but in no case less than $5,000; and (2) any reasonable attorney’s fees, costs and expert and other witness fees incurred by Merchant.

xi. Definitions. For purposes of this section xii. only, (i) American Express includes its Affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables, and all agents, directors, and representatives of any of the foregoing, (ii) Merchant includes Merchants Affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables and all agents, directors, and representatives of any of the foregoing, and (iii) Claim means any allegation of an entitlement to relief, whether damages, injunctive or any other form of relief, against American Express or against Processor or any other entity that American Express has the right to join, including, a transaction using an American Express product or network or regarding an American Express policy or procedure.

F. Establishment Closing

If a Merchant closes any of its Establishments, Merchant must follow these guidelines:
Notify payment processing company immediately.
Policies must be conveyed to the Card Member prior to completion of the Charge and printed on the copy of a receipt or Charge Record the Card Member signs. See Section 4.8, Return and Cancellation Policies of the Merchant Requirements for additional information.
If not providing refunds or exchanges, post notices indicating that all sales are final (e.g., at the front doors, by the cash registers, on the Charge Record and on websites and catalogs).
Return and cancellation policies must be clearly disclosed at the time of sale.
For Advance Payment Charges or Delayed Delivery Charges, delivery of the goods or services which have already charged to the Card Member is required or Credit must be issued for any portion of the Charge for the goods or services not delivered.

 
ITEMBASE MERCHANT AGREEMENT

Last updated December 1, 2023

This Itembase Merchant Agreement (“Itembase Agreement”) is between Client (“Merchant”, “You”) and Itembase Holdings, Inc. (“Itembase”, “we” or “our”), a Delaware Corporation with headquarters at 2870 Peachtree Rd NW #915-8835, Atlanta, GA 30305, U.S.A. The definitions of terms that are defined in this Itembase Agreement shall only apply to such defined terms used in this Itembase Agreement and not to other defined terms in the overall Agreement.

Itembase has developed a platform to provide a “Service” or “Connectivity Services” for the Commerce market to capture purchase data details from the systems Merchants (sellers of goods and services to buyers) utilize, in order to make this data available to Merchant selected and participating Solution Providers (providers of applications or services).  Merchants that opt-in to participate, go through the verification steps and execute this Itembase Agreement become “Certified Merchants,” and therefore can select and participate with Solution Providers through Itembase.  

1. Services Descriptions.

Merchant Usage: This Itembase Agreement covers your use of the Itembase Connectivity Services (a “Service” and collectively, the “Services”).  

1.1 Itembase’s Services: The purpose of the Services is to provide the Commerce market with a single access point that connects to the systems Merchants utilize to sell to Consumers (business or individuals that purchase goods or services from Merchants) so purchase data detail can be made available to Solution Providers.  This simplifies the process for Solution Providers in shipping, financial services, accounting firms, etc. to interface with Merchants, which makes more applications and services available for Merchants.  The Itembase Service consists of access to and use of application programming interface(s), together with any accompanying or related documentation, executable applications and other materials and any updates, patches, bug fixes, or modifications made to any of the foregoing, as made generally available by us to participating Merchants from time to time.

2. Acceptance & Registration & Merchant Account Number.

2.1 Acceptance. This Itembase Agreement constitutes a binding legal contract that governs Merchant’s ongoing access to, and use of the Services. Itembase reserves the right to terminate the Itembase Agreement, at any time and for any reason, including but not limited to Merchant’s failure to meet the Eligibility Requirement identified in Section 2.2 below.

2.2 Eligibility Requirements. The “Eligibility Requirement” is the Merchant’s representation that: (a) Merchant has the legal capacity to be bound by this Itembase Agreement; (b) Merchant has the necessary rights and authority to enter into and perform the obligations required of it under this Itembase Agreement; (c) all information which Merchant provides to us, including but not limited to information provided during registration and information about Merchant’s business, is Merchant’s or within Merchant’s right to use, and is and will remain accurate, complete and current; (d)  Merchant is in compliance with, and will only use the Services in compliance with, all applicable laws, including but not limited to all applicable laws and regulations pertaining to data privacy and laws related to the import or export of data or software; (f) all websites, associated sub-pages, domains and/or mobile applications in connection with the Merchant are owned or controlled by Merchant; (g) none of the shop data or content will contain any unlawful, defamatory, offensive, libelous, harassing, abusive or fraudulent content or material; (h) Merchant is not subject to any pending lawsuits, fines, or government or regulatory actions; and (i) Merchant will provide us with any reasonable information, records, or materials that we request to verify Merchant’s compliance with the “Eligibility Requirement” above and other terms and conditions of this Itembase Agreement. Itembase reserves the right and discretion to determine whether Merchant’s use of the Service is in compliance with this Itembase Agreement. Itembase reserves the right to reject any Merchant, for any reason, at any time, and in its sole discretion.

3. Modifications.

Itembase reserves the right to amend or modify the terms of this Itembase Agreement at any time.  You will find the most recent version of this Itembase Agreement with the date of last modification noted above at: https://dashboard.itembase.com/login by logging in with your provided username and password.  All Itembase Agreement amendments shall become effective immediately upon the posting thereof.  It is Merchant’s responsibility to review the latest version of this Itembase Agreement on a regular basis to keep you apprised of any changes.  Your continued access or use of the Services will constitute your acceptance of the revised Itembase Agreement.  If you do not agree to the revised terms and conditions, your sole recourse is to immediately cease all use of the Services.

4. Use of the Services.

4.1 Limited License. Subject to the terms of this Itembase Agreement, Itembase grants Merchant a non-exclusive, non-transferable, limited license to access and use the Services.

4.2 Restrictions. Merchant will not and will not permit any third party to directly or indirectly: (a) resell, rent, lease, loan, sublicense or otherwise distribute, transfer or make available the Services or any part thereof to any third party; (b) create a service or platform that functions substantially the same as the Services or the ; (c) make any use of the Services for any other purpose; (d) modify, adapt, alter, translate, or create derivative works of the Services; (e) attempt to reverse engineer, decompile, decode, or disassemble the Services; (f) misrepresent the source or ownership of the Services or remove, obscure, or alter any copyright, trademark or other proprietary rights notices, falsify or delete any author attributions, legal notices or other labels of the origin or source of the Services; (g) promote or facilitate unlawful online gambling or disruptive commercial messages or advertisements, (h) interfere with or disrupt the Services or the servers or networks providing the Services;  or (i) circumvent or seek to circumvent this Itembase Agreement at any time.

4.3 User Feedback. Itembase desires to continuously enhance the Services, and feedback from Certified Merchants is a valuable source of enhancements.  You agree that submission of any ideas, suggestions, documents and/or proposals (“User Feedback”) to Itembase is at your own risk and that Itembase has no obligations (including without limitation obligations of confidentiality) with respect to such User Feedback.  You hereby grant to Itembase a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable license to use, reproduce, perform, display, distribute, adapt, modify, reformat, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all User Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services.

5. Fees and Payment

5.1 Subscription & License Fee. The Itembase Connectivity Service is available free of charge for you as an Itembase Certified Merchant, subject to your compliance with all terms and conditions of this Itembase Agreement.  In exchange for this free Service and the free support and maintenance in 5.2 below, Merchant grants Itembase a fully paid, royalty-free, perpetual, irrevocable, worldwide, nonexclusive license to extract, transform (sorting, harmonizing and cleansing purchase data details), load, process (aggregations, calculations, statistical analysis, semantic analysis and or mathematical modelling of the purchase data details) and distribute the purchase data detail to Merchant-selected Solution Providers, which is provided to, or collected by Itembase.

5.2 Support & Maintenance Fees. Support and Maintenance for Services are available free of charge for Itembase Certified Merchants, subject to their compliance with all terms and conditions of this Itembase Agreement.

6. Updates and Service Level.

Itembase reserves the right at any time to update or modify the Services for any and all reasons, including for purposes of improving the performance of the Services.  Merchant agrees that the Services are provided “as is”, “as available” and come without any guarantees.  If Merchant is dissatisfied with any aspect of the Services at any time, Merchant’s sole and exclusive remedy is to cease using the Services and terminate this Itembase Agreement as set forth in Section 13 below.

7. Confidentiality.

All technical and non-technical information concerning or related to the Services or any part thereof, including any alerts, actions or recommendations, and any information related to the foregoing constitutes our confidential information and property (“Confidential Information”).  You agree to (i) use the Confidential Information only in connection with fulfilling your rights and obligations under this Itembase Agreement; (ii) hold the Confidential Information in strict confidence and exercise due care with respect to its handling and protection, consistent with your protection of your own confidential information but not less than reasonable care, (iii) not disclose the Confidential Information except for disclosures to employees who have a bona fide need to know the Confidential Information and who have entered into written confidentiality obligations no less stringent than those contained in this Itembase Agreement.  You agree that any unauthorized disclosure of the Confidential Information would cause us irreparable harm, and that in the event of any breach or threatened breach of the above confidentiality obligations, Itembase shall be entitled to seek equitable relief in addition to any other remedy available to us at law or in equity.

8. Privacy Compliance. 
Itembase will process personal data only for the purpose provided in the Data Processing Agreement between Itembase and the Merchant directly or in individual Data Processing Agreements with each Solution Provider for specific applications and services the Merchant has provided an Opt-In.  At any time, Merchant may Opt-Out.

9. Ownership.

Itembase shall own and retain all rights, title, and interest in and to the Services, and the Confidential Information, including all intellectual property rights contained therein.  Merchant shall not remove or destroy any copyright notices, proprietary markings or confidential legends placed upon or contained within the Services.  Except for the express license granted in Section 4.1, no other licenses are granted by Itembase hereunder whether by implication, estoppel or otherwise, and Itembase hereby reserves all rights not expressly granted herein.

The intent behind providing Itembase the purchase data detail is to facilitate connectivity of such purchase data detail with the Merchant’s selected Solution Provider or hosting party (the “Referring Party”).  Itembase does not claim ownership of the purchase data detail you provide us.  You acknowledge Itembase’s need to perform advanced transformations and give Itembase the right to transform the purchase data detail to deliver the Services to you and your Referring Party.  Beyond what is stated in paragraph 5.1 and this paragraph below related to specific Consumers, this Itembase Agreement does not grant us any licenses or rights to the purchase data detail received by us in the performance of the Services.  Itembase will protect the Merchant’s purchase data detail in accordance with the data security policies and practices that it uses for its own proprietary information.  

Itembase acknowledges that each Consumer has rights to his or her specific purchase data detail (“Consumer-Specific Data”).  Itembase policy is to make all Consumer-Specific Data available to a Consumer upon his or her electronic or written request and free of charge.  A Consumer may direct Itembase through an Opt-In to provide a continuous electronic transfer of his or her own Consumer-Specific Data.  You agree to acknowledge the Consumer’s right to such data, the validity of a Consumer Opt-in requesting their Consumer-Specific Data, that the Consumer Opt-In requesting their Consumer-Specific Data shall prevail over this Itembase Agreement as it relates to that specific Consumer’s Consumer-Specific Data only and not to dispute any Consumer Opt-In requesting their Consumer-Specific Data.

10. Disclaimer.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ITEMBASE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE SERVICES ARE PROVIDED “AS-IS,” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. ITEMBASE DOES NOT WARRANT THE COMPREHENSIVENESS, CORRECTNESS, LEGALITY, TIMELINESS, OR ACCURACY OF THE SERVICES OR THAT ANY RECOMMENDATION, ALERT, ACTION, SOLUTION, OR SERVICE SUGGESTION IS ACCURATE OR WILL BRING MERCHANT ANY FORM OF BENEFIT, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MERCHANT FROM ITEMBASE OR THROUGH OR FROM OUR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. MERCHANT ACKNOWLEDGES AND AGREES THAT MERCHANT’S USE OF THE SERVICES SHALL BE AT MERCHANT’S OWN RISK.

11. Indemnification.

Merchant will indemnify, defend, and hold Itembase its Business Partners, and each of our and their respective officers, directors, employees, agents, contractors, licensors, partners and suppliers (collectively the “Suppliers”) harmless from and against any and all liabilities, damages, losses, costs and expenses (including but not limited to reasonable attorneys’ fees) arising out of or related to: (a) Merchant’s use of the Services; (b) Merchant provided purchase data details or content; or (c) any Merchant non-compliance with this Itembase Agreement. Merchant will cooperate as reasonably required in the defense of any claim. Itembase reserves the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

12. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ITEMBASE AND ANY AFFILIATED COMPANY (DEFINED AS ANY COMPANY WHERE ITEMBASE TODAY OR IN THE FUTURE DIRECTLY OR INDIRECTLY OWNS 50% OR MORE OF THE VOTING STOCK OR THE RIGHT TO CONTROL SUCH COMPANY), AND ITS BUSINESS PARTNERS AND SUPPLIERS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICES, OR FOR ANY LOSS OF REVENUE, BUSINESS OPPORTUNITIES OR DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO: CONTRACT, TORT, COMMON LAW, OR STATUTORY), WHETHER OR NOT ITEMBASE OR SUPPLIERS HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES. IN NO EVENT WILL ITEMBASE’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF (a) THE TOTAL AMOUNTS PAID, IF ANY, BY MERCHANT TO ITEMBASE FOR THE SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM AND (b) $1000.

13. Term; Termination; Suspension.

This Itembase Agreement shall remain in effect in perpetuity, or until terminated by either Merchant or Itembase as set out below (“Term”).  Merchant may at will terminate this Itembase Agreement without liability, in its sole discretion at any time, and such termination shall be effective 30 days after Itembase’s receipt of Merchant’s written termination notice.  Itembase may terminate this Itembase Agreement and your rights to access and use the Services, with or without notice and without liability, in its sole discretion. Itembase also reserves the right to temporarily suspend access to the Services for: (a) scheduled or unscheduled maintenance; (b) purposes of maintaining the security and/or integrity of our network, hardware, or associated systems or those of our third party providers; (c) unplanned technical problems or outages; or (d) to investigate a suspected violation of the terms of this Itembase Agreement by you or users assigned by you.  Upon termination, you will immediately cease any and all use of the Services and the license granted to you pursuant to Section 5.1 shall terminate.

Sections 4.2 and 7 through 14 will survive termination of this Itembase Agreement or any discontinuation of the offering of the Services, or any part thereof.  Itembase reserves the right to determine the exact links, data and content it removes at the time of termination.

14. General.

14.1 Relationship of the Parties. Merchant acknowledges and agrees that Merchant and Itembase are operating as independent entities and not as partners, agents or in joint ventures.  Neither party will make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so.  Merchant understands that Itembase, in its sole discretion, reserves the right to provide the Services, or any part thereof, to other companies, partners, or individuals.  

14.2 Marketing and Promotional Use. In the course of promoting, marketing, or demonstrating the Services and other products or services, Itembase may publicize that Merchant is using the Services, including but not limited to using Merchant’s name or logo in presentations, marketing materials, websites and customer lists.  Merchant hereby grant Itembase all necessary rights for the foregoing purposes.

14.3 Assignment. Merchant may not assign this Itembase Agreement or any rights or obligations without Itembase’s prior written consent, except that either party may assign this Itembase Agreement (in whole or in part) to the surviving entity in the event of a merger, sale of stock, sale of assets, or other reorganization in which the assigning party is not the surviving entity.  However, the assigning party must notify the other party prior to or at the time of any such transaction and the new entity must agree to be bound by the terms and conditions of this Itembase Agreement.

14.4 Force Majeure. Merchant understands and agrees that Itembase will not be liable to Merchant or other party for any delay or failure to perform hereunder due to circumstances beyond our reasonable control, including, but not limited to, acts of God, acts of government (including the passage of laws or regulations or other acts of government that impact the delivery of the Services), flood, fire, earthquakes or other action of the elements, quarantines, epidemics or pandemics, civil unrest, acts of terror, riots, war, shortage or inability to obtain materials, strikes or other labor problems (excluding those involving such party's employees), Internet or other service disruptions involving hardware, software or power systems not within our possession or reasonable control, and denial of service attacks.

14.5 Governing Law and Dispute Resolution. All disputes arising out of or in connection with this Itembase Agreement shall be conducted by JAMS, an established alternative dispute resolution provider, by a single arbitrator appointed in accordance with JAMS’ rules.  All claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.  The place of the arbitration shall be Atlanta, Georgia, U.S.A.  The language of the arbitration shall be English.  The arbitration shall be commenced by a request for arbitration by either party, delivered to the other party.  The request shall set out the nature of the claim(s) and the relief requested.  Except as otherwise specifically limited in this Itembase Agreement, the arbitrator shall have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including but not limited to conservatory relief and injunctive relief, and any such measures ordered by the arbitrator shall, to the extent permitted by applicable law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such. Each party retains the right to apply to any court of competent jurisdiction for interim and/or conservatory measures, and any such request shall not be deemed incompatible with the Itembase Agreement to arbitrate or a waiver of the right to arbitrate.  The existence and content of the arbitration and any rulings or awards shall be kept confidential by the parties and the arbitrator, except (i) to the extent that disclosure may be required of a party to fulfil a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority, (ii) with the consent of all parties, (iii) where needed for the preparation or presentation of a claim or defense in this arbitration, (iv) where such information is already in the public domain other than as a result of a breach of this section, or (v) by order of the arbitrator upon application of a party.  This Itembase Agreement shall be governed by, and all disputes arising under this Itembase Agreement shall be resolved in accordance with, the laws of the State of Georgia, U.S.A. Any award of the arbitrator shall be final and binding on the parties.  The parties undertake to carry out any award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made.  Enforcement of any award may be sought in any court of competent jurisdiction.

14.6 Waiver. No provision of this Itembase Agreement will be waived by any act, omission or knowledge of ours or our agents or employees except specifically in a writing signed by us.

14.7 Severability. If any provision or part of a provision in the Itembase Agreement is held to be illegal, invalid, or unenforceable by a court or other decision-making authority of competent jurisdiction, then the remainder of the provision will be enforced so as to effect the intention of the parties, and the validity and enforceability of all other provisions in the Itembase Agreement will not be affected or impaired.

14.8 Notices; Electronic Communications.  By registering for the Services and accepting this Itembase Agreement, you consent to receiving, and we reserve the right to send you, communications or information regarding the Services, including but not limited to (i) notices about your use of the Services, including any notices concerning violations of use, (ii) updates, and (iii) promotional information and materials regarding our products and Services, via electronic mail.  Where Itembase requires that you provide an email address, you are responsible for providing us with your most current email address.  In the event that the last email address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Itembase Agreement, our dispatch of the email containing such notice will nonetheless constitute effective notice.  You may give notice to Itembase at the following address: Legal@Itembase.com.  Such notice shall be deemed given when received by Itembase by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.

14.9    Entire Agreement. This Itembase Agreement constitutes the whole legal agreement between the parties in connection with your use of the Services, and governs such use.  This Itembase Agreement completely replaces and supersedes any prior agreements between the parties, and/or for Itembase whether written or oral, in connection with the Services.  Except as set forth herein, any modification of or changes to this Itembase Agreement must be in a writing duly authorized by an authorized representative of ours.

If you have any questions about the Services, or this Itembase Agreement, you may contact us at: Legal@Itembase.com


GLOSSARY OF TERMS

Last updated December 1, 2023

"ACH" means the Automated Clearing House.

"Affiliate" means, with respect to either Party, any corporation, company, partnership, or other entity which is directly or indirectly controlled by such Party or is directly or indirectly controlled by a person or entity that is the same as that which controls the Party. For the purposes of this definition, control shall mean ownership of half or more of the voting interests in an entity.

Agreement” means the Application and the Terms of Service.

"American Express" means American Express Travel Related Services Company Inc.

Application” means the Company application and all related materials completed and supplied by Client to Company in connection with the initiation of this Agreement.

“Authorization” means an authorization of an ACH Transaction with respect to any Customer, obtained from such Customer in accordance with the NACHA Rules.

“Bill360” means Bill360, Inc., a Florida Corporation.

“Bill360 User ID” is the unique and private account access to the Solutions established by Client on behalf of each of its authorized Users to enable such Users to access the Solutions, in all instances subject to the terms and conditions of the Agreement.

“Card” means a debit or credit card bearing the brand of a Payment Network and subject to such Payment Network’s Rules.

“Card Transaction” means a Transaction initiated by the use of a Card or a Card account number.

Client” means the Company client identified in the Application.

Client Data” shall mean data or information that Client and/or any User enters, transmits, or inputs into the Solutions, or is otherwise imported by Company from Client systems.

Company” means Bill360, Inc., a Florida corporation.

“Company Data” means all data and information belonging to, in the possession of or provided by Company including, but not limited to, Company Materials, Company Information, Company Intellectual Property and Company Confidential Information.

Company Information” means any pre-existing work or Confidential Information of Company that is used in the provision of the Solutions or included in any work product, including, without limitation, software, methodologies, code, templates, tools, policies, records, working papers, know-how, data or other intellectual property.

Company Intellectual Property” shall include but not be limited to the Solutions and all other intellectual property of Company and the rights related thereto, whether such property is owned through patents, copyrights, database rights, trade secrets, trade names, trademarks, or other proprietary rights.

Company Materials” shall mean all materials, including without limitation documents, instructions, requests, specifications, drawings, drafts, notes, designs, software, code, data, graphics, computer media, electronic files and lists, including all additions to, deletions from, alterations of, and revisions of the foregoing, which are furnished to Client by Company or which are developed in the process of performing the Solutions, or embody or relate to the Solutions or Company Information, which are the property of Company.

Confidential Information” means all non-public, proprietary data or information of either Party which is valuable to the operation of such Party’s business, including but not limited to trade secrets, methods, processes, procedures, client lists, customer lists, vendor information and financials, and is (i) treated by such Party as confidential, (ii) designated by such Party in writing as confidential; or (iii) would be viewed as confidential by a reasonably prudent person. Confidential Information does not include information that: (a) is public knowledge at the time of disclosure by the disclosing Party; (b) becomes public knowledge or known to the receiving Party after disclosure by the disclosing Party other than by breach of the receiving Party's obligations under this Agreement or by breach of a third-party's confidentiality obligations; (c) was known by the receiving Party prior to disclosure by the disclosing Party other than by breach of a third-party's confidentiality obligations; or (d) is independently developed by the receiving Party.

“Customer” means a client or customer of Client.

"Customer Data" means information associated with a payment instrument, such as account number, expiration date, track-2 data, and CVV2; information associated with a Customer’s bank account(s), including, without limitation, account numbers and bank routing numbers; and other information associated with a Customer’s Transactions.

Data” used without a modifier means all Client Data, Company Data, Customer Data, and Personal Data.

"Direct Merchant Agreement” see Direct Merchant Agreement.

Discover” means Discover Financial Services.

Effective Date” means the date that this Agreement is accepted by Company.

“FCRA” means the Federal Fair Credit Reporting Act as amended (FCRA), 15 U.S.C. 1681 and following.

Feedback” means Client, Customer, and User comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Solutions.

Fees” means the fees and charges payable under this Agreement as set forth in the Fee Schedule.

“Fee Schedule” see Fee Schedule.

“General Terms and Conditions” see General Terms and Conditions.

“Glossary” means this Glossary and is part of the Agreement.

"Guarantor" means any person or entity guaranteeing the Client obligations, either as indicated on the Application or otherwise.

Guidelines” means the policies, guidelines, rules, guides, and regulations imposed from time to time by Company, Processors, the Payment Networks, and the Sponsors with regard to Client’s use of the Solutions including, but not limited to, “Your Payments Acceptance Guide” as provided by the Processors.

“Laws” means federal, state, and local laws, rules, policies, guidelines, regulations, and ordinances applicable to -- and any other orders, requirements and prohibitions issued by governmental authorities having jurisdiction over -- the Parties or the services or activities that are subject to or contemplated by this Agreement.

"Mastercard" means Mastercard International Incorporated.

"NACHA” means the National Automated Clearing House Association, which governs the ACH Network.

“Party” or “Parties” means either of Company or Client or, collectively, the Company and Client, as applicable.

Payment Network” means card associations, debit networks, payment systems (including but not limited to Visa, MasterCard, American Express, Discover, PayPal and NACHA), any state or federal agency that has or acquires governing or regulatory authority over activities engaged in during the performance and receipt of Payment Services, and other third-parties that provide, promote, enable or operate a payment system.

“Payment Services” see Payment Services.

“PCI DSS” means the Payment Card Industry Data Security Standards, as they may be amended or modified from time to time.

"Penalties" means any and all fines, charges, penalties, assessments, late submission charges and all other costs, expenses and indebtedness levied by a Payment Network, other regulatory authority or other third-party that are assessed against, likely to be assessed against, charged to, likely to be charged to, incurred by (directly or indirectly) or otherwise paid by, Company to the extent attributable to, arising out of, or related to Client’s (i) Transactions or business, or (ii) breach or alleged breach of any provision in this Agreement.

Personal Data” means non-public information that identifies a specific living person (not a company, legal entity, or machine) and is transmitted to or accessible through the Solutions.

Processors” means one or more payment processors of Transactions that has contracted with Company to assist Company in delivering the Payment Services.

“Privacy Policy” see Privacy Policy.

"Prohibited Activity" means any activity deemed to be prohibited by the Company, the Processors, the Payment Networks, or the Sponsors, as communicated to Client from time to time through the Guidelines or otherwise.

“Reserve” means a reserve account established and maintained to protect the Sponsors and Company from actual or potential liabilities under the Agreement.

Return” means the return of an ACH entry, unpaid, for various reasons including non-sufficient funds, uncollected funds, stop payment, account closed, or unauthorized.

Reversal” means the reversal of an erroneous ACH entry for incorrect account number or type, incorrect amount, or duplicate Transaction.

Rules” shall mean those rules and regulations promulgated by the Payment Networks.

“SaaS Services” see SaaS Services.

Solutions” shall mean, collectively, the SaaS Services and the Payment Services.

Sponsors” means (i) a member or members of a Payment Network that provide sponsorship to Company as a payment services provider, payment facilitator or otherwise in order to enable Company to supply the Payment Services, and/or (ii) any other third party that has or acquires governing or regulatory authority over activities engaged in during the performance and receipt of Payment Services.

Terms of Service” means the sections of the Agreement entitled General Terms and Conditions, SaaS Services, Payment Services, Direct Merchant Agreement, American Express Card Acceptance and Brand Requirements, Itembase Merchant Agreement, and Glossary, and also includes all Guidelines, exhibits and attachments applicable thereto.

Third-Party Sender” has the meaning assigned to such term in the Rules and includes a third-party service provider that acts as an intermediary in transmitting ACH entries between an originator (in this case, Client) and a financial institution, acting on behalf of the originator.

"Third-Party Servicer" means a third-party that provides a product or service that Client wishes to procure which product or service may or may not be compatible or integrated with the Payment Services.

Third-Party Software” means any software provided by third-party vendors that is utilized by or in the Solutions.

"Transaction" means any payment transaction originated by or on behalf of Client or a Customer and conducted through or under the authorization of a Payment Network, pursuant to the Rules, utilizing any of the Payment Services.

"User" shall mean an individual authorized by Client to use the Solutions and who possesses a valid and unique Bill360 User ID and password with which to access the Solutions.

"Visa" means Visa U.S.A., Inc., or Visa International.

we”, “us”, ours” and the like means the Company.

you”, “your”, “yours” and the like means Client.