PressPay Technologies LLC
SUB-MERCHANT AGREEMENT

TERMS AND CONDITIONS

These terms and conditions are part of the binding Agreement between PressPay and Sub-Merchant.  Capitalized terms used in this Agreement not otherwise defined herein are defined in the Glossary set forth below in these terms and conditions. PressPay and Sub-Merchant hereby agree as follows:

1. PressPay Services

The PressPay Services are a cloud-based payment system by which PressPay, Bank and Processor serve as a processing channel with respect to Card Transactions for Sub-Merchant to receive payments on its behalf, and PressPay serves as a Third Party Sender with respect to ACH Transactions originated by a Sub-Merchant, pursuant to the terms hereof and the selections of the Sub-Merchant made through its Account. PressPay shall facilitate the processing of Sub-Merchant’s Card Transactions that are originated in accordance with the Payment Network Rules, as provided herein and otherwise as PressPay, in its sole discretion, deems appropriate.  As a Third Party Sender, PressPay shall transmit Sub-Merchant’s ACH Transaction debit and credit entries that are originated by Sub-Merchant in accordance with the NACHA Rules by such means as PressPay, in its sole discretion, deems appropriate.  The PressPay Services additionally include the services set forth in Addendum A – General Services Addendum.

2. Account

So long as Sub-Merchant is not in breach of this Agreement, Sub-Merchant shall be granted an Account accessible through the PressPay Services. The Account shall include a record of Sub-Merchant Transactions and Fees. PressPay shall provide Sub-Merchant with credentials for access to the Account. Sub-Merchant may not disclose such codes or permit any third party to use them other than Third Party Servicers pursuant to a binding written agreement with Sub-Merchant. Sub-Merchant assumes full responsibility for the use of its Account and the access credentials thereto and shall indemnify PressPay for any and all claims, losses or other liabilities arising therefrom. Except as required to deliver or receive the PressPay Services or as otherwise required by law, PressPay shall not grant any third party access to the Account.  PressPay may debit or credit the Sub-Merchant’s bank account(s) associated with its Account in connection with its activities under this Agreement, and may perform such debits and/or credits through a third party designated by PressPay who is a licensed money transmitter.

3. Prohibited Merchants

All of the following Persons are prohibited from using the PressPay Services: (i) Persons who appear on the U.S. Department of the Treasury, Office of Foreign Assets Control, Specially Designated Nationals List; (ii) Persons who are less than 18 years of age; (iii) Persons, or their Affiliates who have been previously terminated for cause by PressPay or any of its Affiliates; and (iv) Persons who are not both domiciled and resident in the United States.

4. Prohibited Activities

It is forbidden for a Sub-Merchant to use PressPay Services to assist in any illegal activity or any Prohibited Activity. Likewise, Sub-Merchant may not use PressPay 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 Asset Control. Without any limitations on any other Prohibited Activity, Sub-Merchant hereby affirms that no payments whatsoever for firearms or ammunition or any parts or accessories that could modify the performance or action of any actual firearms (e.g., bump stocks) will be made through the Account. Payments for these items will be taken via alternate means only. Sub-Merchant may not itself or through any other Person: (i) copy, modify, adapt, translate, reverse engineer, decompile, or disassemble, in any way, any portion of the PressPay Services and/or content made accessible by PressPay including any information, pictures, videos, text, graphics, software programs used by PressPay in connection with the PressPay Services and Content, or publicly display, reproduce, create derivative works from, perform, distribute, or otherwise use such Content, other than as permitted by PressPay in writing; (ii) make any use of the Content and/or PressPay Services on any other website or networked computer environment for any purpose, or replicate or copy the Content without PressPay’s prior written consent; (iii) interfere with or violate any other services or user's right to privacy or other rights, or harvest or collect personally identifiable information about users of the PressPay 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 PressPay 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 PressPay Services, or the servers or networks that host the PressPay 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 PressPay Services other than permitted by PressPay; (viii) forward any data generated from the PressPay Services without the prior written consent of PressPay; (ix) sub-license any or all of the PressPay Services to any third party; or (x) transfer or assign the Account password, even temporarily, to a third party.

5. Application

On sign-up and throughout the term of this Agreement, Sub-Merchant shall supply, through the Application and by such other means as PressPay may require, information concerning the Sub-Merchant, its Guarantor (if required by PressPay) and principals. Sub-Merchant shall notify PressPay of any changes in such information.  Federal Regulations enacted pursuant to the USA Patriot Act and other applicable laws require financial institutions to verify the identity of every person who seeks to open an account with a financial institution.  Sub-Merchant shall provide documentary verification as requested from time to time by PressPay in a manner acceptable to PressPay.  PressPay, Processor, and Bank reserve the right to verify Sub-Merchant’s identity through other non-documentary methods as deemed appropriate in their sole discretion.  PressPay, Processor, and Bank may retain a copy of any document it obtains to verify Sub-Merchant’s identity. Sub-Merchant will elect on the Application to accept (full acceptance) or not accept (limited acceptance) Cards for payment. A full acceptance Sub-Merchant will accept all valid Cards unless Sub-Merchant provides thirty (30) days written notice to PressPay requesting limited acceptance and stating Sub-Merchant’s election of Card types. Limited acceptance is not applicable to non-US issued Cards and is in all instances subject to the Rules. Sub-Merchant will prominently display Card signage provided by PressPay in its place(s) of business and the type of signage displayed will be in accordance with the Payment Networks accepted by Sub-Merchant and if Sub-Merchant participates in full or limited acceptance

6. Customers

PressPay is not party to any Sub-Merchant relationship with its Customer that necessitates the Transaction and PressPay shall have no obligations thereunder or in respect thereof.  Sub-Merchant is solely responsible for its Product and all customer service issues related thereto including pricing, order fulfillment, order cancellation by Sub-Merchant or the Customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with Sub-Merchant personnel, policies or processes. Sub-Merchant shall post its customer service telephone number on its website. Sub-Merchant shall indemnify and hold harmless PressPay, Processor, Bank and their respective shareholders, directors, officers and employees harmless from any and all claims, losses or other liabilities arising from or in relation to Sub-Merchant’s relationship with its Customer or any Product, 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 Sub-Merchant. PressPay and Bank 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, reversal Return or Reversal. If Sub-Merchant 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.

7. PressPay Regulatory Status

PressPay is not a bank, money transmitter or other money services business. PressPay Services relate solely to the facilitation of Transactions between Customers and the Sub-Merchant pursuant to this Agreement. Settlement funds are not insured by PressPay, Processor, Bank or any third party. PressPay reserves the right to monitor use of the PressPay Services by Sub-Merchant and its Customers to ensure compliance with this Agreement, the Rules and applicable laws. If PressPay determines that Sub-Merchant is not in compliance with this Agreement, the Rules or applicable law, PressPay reserves the right to take appropriate action including, but not limited to suspending or terminating this Agreement or access to the Account. Bank, not PressPay, settles Card Transaction funds to Sub-Merchant, and PressPay does not settle ACH Transaction funds to Sub-Merchant. PressPay does not at any point hold, own or control funds in connection with the PressPay Services, nor does PressPay transmit money or anything of monetary value. In connection with the PressPay Services, PressPay 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 Bank is the party with sole responsibility for conducting the settlement of funds between Customers and Sub-Merchants.

8. Platform Services and Third Party Servicers

PressPay assists in enabling Platforms to help Sub-Merchant administer its Account with PressPay and provides services directly to Sub-Merchant or its Customers.  When Sub-Merchant opens an Account through a Platform, Sub-Merchant authorizes PressPay to permit the Platform to (i) access Sub-Merchant’s Account with PressPay and any data contained in such Account; (ii) assist Sub-Merchant in creating and managing Transactions with Customers; and (iii) deduct Platform fees from funds payable to Sub-Merchant. Sub-Merchant agrees to pay all Platform fees in addition to the Fees as set forth in this Agreement.  PressPay does not assume any responsibility with regard to the connectivity between Sub-Merchant and any Platform or Third Party Servicer. It is ultimately Sub-Merchant’s responsibility to insure that Sub-Merchant Transactions reach PressPay, Processor and the Bank in order to receive PressPay Services. Sub-Merchant shall not use any Third Party Servicer unless it has all necessary Payment Network registrations and is fully compliant with applicable law and the Rules, as determined by PressPay. PressPay is not liable for Third Party Servicers or their services even if the Site contains links to them or the PressPay 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 PressPay. Sub-Merchant agrees that Sub-Merchant accesses any such website at Sub-Merchant’s own risk.

9. Equipment/Third Party Services

The following provisions apply if Sub-Merchant elects to purchase supplies or purchase, rent, or otherwise use equipment from PressPay at any time:

(i) Equipment Terms of Use and Sale. As requested by Sub-Merchant and upon PressPay’s approval, PressPay may lease, rent, sell or otherwise provide Equipment to Sub-Merchant in connection with this Agreement.  Sub-Merchant agrees that PressPay may substitute a comparably valued device making up the Equipment in the event the device Sub-Merchant selected is out of stock or otherwise not currently available to PressPay and/or if PressPay reasonably believes that the requested Equipment is not compatible with Sub-Merchant’s POS software or other equipment. Except as otherwise set forth in (ii) of this section below, Sub-Merchant acknowledges that PressPay provides the Equipment to Sub-Merchant on an 'as is' basis, with no representations or warranties.  Sub-Merchant agrees to release and hold PressPay harmless from any claims relating to any breach of manufacturer’s or third party’s warranties and that PressPay is not liable to Sub-Merchant for any loss, delay, error, interruptions or damage of any kind or character, whether direct, indirect or consequential, resulting from inoperable, defective or otherwise non-working Equipment.  Sub-Merchant is solely responsible for complying with the Payment Network Rules and applicable laws regarding Sub-Merchant’s use of the Equipment.

(ii) Equipment Support. PressPay agrees to provide limited technical support for installation and operation of the Equipment and to deliver to Sub-Merchant any available product warranties provided by the manufacturer of the Equipment or other third party.  PressPay has no liability or responsibility for fulfilling the terms of the manufacturer or other third-party warranties, if any.  Sub-Merchant’s sole recourse relating to the manufacturer or other third-party warranty shall be through the manufacturer or, as applicable, the third party.  PressPay or the Platform may assist Sub-Merchant in the repair or replacement of the Equipment if necessary, as determined by PressPay or Platform, and subject to additional charges and/or required documentation.  If PressPay or the Platform replaces the Equipment pursuant to the above sentence, Sub-Merchant agrees to return the original Equipment, at Sub-Merchant’s sole cost and expense, within ten (10) calendar days of Sub-Merchant’s receipt of the replacement Equipment.

(iii) Use of the Equipment. The operating instructions will instruct Sub-Merchant in the proper use of the Equipment, and Sub-Merchant shall use and operate the Equipment only in such manner.  Sub-Merchant agrees that Sub-Merchant will not acquire any title or proprietary right to any Equipment leased, rented, or otherwise provided free of charge by PressPay or Platform.  Sub-Merchant will protect all such Equipment from loss, theft, damage or any legal encumbrance and will allow PressPay or Platform or other PressPay’s designated representatives reasonable access to Sub-Merchant’s premises for repair, removal, modification, installation and relocation of the Equipment.  PressPay’s suppliers, including where applicable, Platform, are intended third-party beneficiaries of this Agreement to the extent any terms pertain to PressPay’s suppliers’ ownership rights.  PressPay’s suppliers have the right to rely on and directly enforce the applicable terms of this Agreement against Sub-Merchant.  Except for Equipment Sub-Merchant purchases, Sub-Merchant shall not permit the Equipment to be used by any other person or entity or at any address other than Sub-Merchant’s address set forth in the Sub-Merchant Application without PressPay’s express written consent.  With respect to any item of Equipment PressPay or Platform provides to Sub-Merchant, Sub-Merchant will not be liable for normal wear and tear, provided, however, that Sub-Merchant will be liable to PressPay in the event that an item of Equipment is lost, destroyed, stolen or rendered inoperative. Sub-Merchant agrees that Sub-Merchant’s indemnification obligations under this Agreement apply to Sub-Merchant’s use of the Equipment.  Any unused equipment in its original packaging purchased from PressPay hereunder may be returned to PressPay at Sub-Merchant’s expense within sixty (60) calendar days of receipt. Sub-Merchant shall receive a refund of any money paid, exclusive of shipping charges, in connection therewith subject to a re-stocking fee of an amount equal to twenty percent (20%) of the total purchase price for the returned equipment. No refunds shall be issued for any equipment returned after sixty (60) calendar days.

(iv) Software. Sub-Merchant acknowledges that any Equipment provided under this Agreement is embedded with proprietary technology ("Software"). Sub-Merchant shall not obtain title, copyrights or any other proprietary right to any Software. At all times, PressPay or PressPay’s suppliers retain all rights to such Software, including but not limited to updates, enhancements and additions. Sub-Merchant shall not disclose such Software to any party, convey, copy, license, sublicense, modify, translate, reverse engineer, decompile, disassemble, tamper with, and/or create any derivative work based on such Software. Sub-Merchant’s use of such Software shall be limited to that expressly authorized by PressPay. In the event the Equipment requires additional Software, Sub-Merchant is obligated to cooperate with PressPay and Platform for the receipt and installation of such Software and/or to participate in a dial in or other down-load procedure.

(v) Fees and Discontinued Use of Equipment. Sub-Merchant agrees to pay the lease, rental, and other fees and costs set forth in the Application or any order form or amendment or addendum to the Agreement, from the date on which the Equipment is provided to Sub-Merchant and continuing thereafter as provided in this Agreement. Furthermore, for any Equipment provided to Sub-Merchant not included in the Application, order form, amendment, or addendum, Sub-Merchant agrees to pay the suggested retail price or PressPay’s standard list price for the Equipment as invoiced to Sub-Merchant by PressPay or Platform.  If PressPay or Platform provides Sub-Merchant Equipment at no cost, or Sub-Merchant rents or leases Equipment from PressPay, within fourteen (14) calendar days from the earlier of: (i) the end of the lease or rental term; (ii) upon such time that Sub-Merchant discontinues transmitting Customer Transactions through the Equipment to PressPay for a period of thirty (30) calendar days; or (iii) Sub-Merchant has not submitted a transaction to PressPay within thirty (30) calendar days of the date PressPay provides Sub-Merchant the Equipment, Sub-Merchant agrees to, either: (a) return the Equipment to PressPay or Platform at Sub-Merchant’s sole cost and expense, if so instructed by PressPay; or (b) otherwise pay the equipment non-return/non-use fee of up to $999.00 per device unless expressly otherwise agreed in writing.  In the event Sub-Merchant discontinues transmitting customer transactions through the Equipment to PressPay for a period of thirty (30) calendar days within the initial term of the lease or rental, Sub-Merchant agrees that the monthly lease or rental fee set forth in the Application shall apply for the remainder of such initial term which monthly lease or rental fee will be accelerated and immediately charged to Sub-Merchant.

10. Credit Check Consent; Financial Information

In connection with Sub-Merchant procuring PressPay Services from PressPay, Sub-Merchant understands that one or more consumer reports as defined in the FCRA may be obtained by PressPay from consumer reporting agencies and Sub-Merchant consents to PressPay obtaining such reports and agrees to provide PressPay with any information necessary to obtain such reports. Sub-Merchant (which term shall include its shareholders, officers and Guarantors in this consent) 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, such information may be used to evaluate whether Sub-Merchant is an appropriate candidate for transacting with PressPay and this determination may be adverse to Sub-Merchant. Upon written or verbal notice at any time, Sub-Merchant agrees to furnish to PressPay its recent and/or historical financial statements and other financial information.  From time to time, PressPay may request credit and other financial information concerning Sub-Merchant, its owners, Guarantors (if any) and principals, and Sub-Merchant agrees to furnish the information in a timely manner.  Further, Sub-Merchant agrees to provide PressPay with prompt written notice of any adverse change in Sub-Merchant’s financial condition that includes but is not limited to: any planned or anticipated liquidation; any significant change in the nature of Sub-Merchant’s business; and any material judgment, writ, warrant of attachment, levy or adverse decision against Sub-Merchant affecting its financial condition.  The information obtained will not be provided to any parties other than to designated authorized representatives of PressPay. Sub-Merchant further understands that a consumer reporting agency may not give out information about Sub-Merchant to PressPay without Sub-Merchants’ written consent. Sub-Merchant hereby authorizes PressPay now, or at any time while it is party to an agreement with PressPay or otherwise engaged by PressPay, to obtain, either directly or through an Affiliate or other third party, a consumer report on Sub-Merchant. This authorization does not include the release of Sub-Merchant’s medical information. A copy, fax or scan of this consent shall be considered as effective and valid as the original. Sub-Merchant understands that in the event any adverse action is taken against Sub-Merchant based in whole or in part on the consumer report, PressPay shall (i) provide notice to Sub-Merchant of the adverse action; (ii) disclose Sub-Merchant’s credit score; (iii) provide Sub-Merchant with the name, address and telephone number of the consumer reporting agency; and (iv) provide notice of Sub-Merchant's rights under the FCRA. On request, California, Minnesota and Oklahoma residents, can obtain a copy of any consumer credit report requested by PressPay. On request, New York residents can be informed if a consumer credit report has been requested on them by PressPay as well as the name of the agency providing the report. Sub-Merchant and its Guarantors have read and understand the above and authorize PressPay to perform the above investigations. Sub-Merchant must provide accurate and complete information. If PressPay cannot verify that this information is complete and accurate, PressPay may deny Sub-Merchant use of PressPay Services, or close the Sub-Merchant Account.

You represent and warrant that all information you provide to Bank and PressPay as of the Effective Date is complete and accurate, and covenant that you will inform Bank and PressPay immediately upon becoming aware that any such information is inaccurate or incomplete after the Effective Date, and upon the occurrence of any event which causes information you provided to Bank or PressPay in connection with registration or renewal to be inaccurate or incomplete.

11. Fees

Sub-Merchant shall pay Fees for the PressPay Services. Fees shall be paid to PressPay by offsets from Transaction fund settlements to the Sub-Merchant’s bank account(s), daily ACH Transaction billing against Sub-Merchant’s bank account(s), monthly ACH Transaction billing against Sub-Merchant’s bank account(s), or any other billing method chosen by PressPay.  If there are insufficient Card Transaction funds to cover Fees, or if any ACH Transaction billing is rejected due to insufficient funds in the Sub-Merchant’s bank account(s), then Sub-Merchant shall pay the Fees immediately. Platform may also have provided disclosure to Sub-Merchant concerning Fees. In the event of any inconsistency between Fees disclosed to Sub-Merchant by Platform and those disclosed by PressPay, the higher of the two shall apply.  If any fees are blank or identified as not applicable on the Application, then PressPay will assess Sub-Merchant PressPay’s  standard fees for such transaction(s) or item(s).  PressPay may change or add fees and/or charges upon notice to Sub-Merchant via PressPay’s Service Delivery Process, and such changes and/or additions to fees and charge shall be effective on no less than ninety (90) days’ notice.  PressPay has the right to round, assess, and calculate interchange and other fees and amounts and on return, chargeback and certain other transactions retain such amounts, in accordance with PressPay’s standard operating procedures.  The PressPay Service used by PressPay to provide Sub-Merchant monthly statements summarizing the transaction processing of Sub-Merchant and fees may be via PressPay’s online Sub-Merchant portal.

12. Transaction Authorizations

Sub-Merchant shall not submit Transactions hereunder unless they are submitted in the correct manner, including the Sub-Merchant being in possession of Transaction receipts and not submitting Transactions until they are complete, (i.e. the goods or services are shipped/provided) and the Transaction is in the correct currency and within the correct time limit, as applicable. Sub-Merchant may set a minimum Card Transaction amount to accept that provides access to a credit account, under the following conditions: (i) the minimum Card Transaction amount does not differentiate between card issuers; (ii) the minimum Card Transaction amount does not differentiate between Payment Networks; and (iii) the minimum Card Transaction amount does not exceed $10.00 (or any higher amount established by the Federal Reserve by regulation).  Sub-Merchant may set a maximum Card Transaction amount to accept that provides access to a credit account, under the following conditions: (a) the Customer (i) is a department, agency, or instrumentality of the U.S. Government; or (ii) is a corporation owned or controlled by the U.S. Government; or (iii) is a Customer whose primary business is reflected by one of the following MCCs: (x) MCC 8220 – Colleges, Universities, Professional Schools, Junior Colleges; (y) MCC8244 – Schools, Business and Secretarial; or (z) MCC 8249 – Schools, Trade and Vocational; and (b) the maximum Card Transaction amount does not differentiate between card issuers; and (c) the maximum Card Transaction amount does not differentiate between Payment Networks.  Bank shall hold, receive, disburse and settle Transaction funds on Sub-Merchant’s behalf. Subject to this Agreement, Sub-Merchant also authorizes Bank to debit or credit any payment card or other payment method PressPay accepts. Sub-Merchant authorizes PressPay Bank to initiate electronic ACH debit and credit entries to Sub-Merchant’s bank account(s) and to initiate adjustments for any Transactions credited or debited in error. Sub-Merchant agrees to be bound by the Rules, and Sub-Merchant agrees that all ACH Transactions that Sub-Merchant initiates will comply with the NACHA Rules and all applicable law. In the event of any inconsistency or conflict between any provision of this Agreement and the Rules, the Rules shall govern.  Sub-Merchant’s authorization will remain in full force and effect until Sub-Merchant notifies PressPay that Sub-Merchant revokes such authorization by contacting PressPay through the Account. Sub-Merchant understands that PressPay requires a reasonable time to act on Sub-Merchant revocation.

13. Settlement

Each Account must be linked to at least one verified Sub-Merchant bank account; meaning, the Sub-Merchant bank account(s) must match the routing number and account number provided by Sub-Merchant as well as Sub-Merchant’s legal entity name or registered DBA name. The Bank will transfer funds to the Sub-Merchant's bank account(s) according to this Agreement. If Bank cannot transfer the funds to the Sub-Merchant's bank account(s) (due to inaccurate or obsolete bank account information entered by the Sub-Merchant, or for any other reason), PressPay may refund the funds to the Customer or escheat them as provided below. None of Bank, PressPay or the Customer will have any liability to Sub-Merchant for funds so refunded. Settlements to a bank account shall be limited or delayed based on Sub-Merchant’s perceived risk and history with PressPay as determined by the sole and absolute discretion of PressPay or Bank and PressPay may debit any Sub-Merchant bank account(s) for any reason permitted in this Agreement. Unless otherwise agreed in writing by PressPay, Transaction settlement shall be by ACH to the Sub-Merchant’s bank account(s).

14. Sub-Merchant Transaction Disclosure and Privacy Policy

Sub-Merchant 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 Sub-Merchant be permitted to impose a tax. Any tax amount, if allowed, must be included in the Transaction amount and not collected separately; (iii) Asses 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 Products from Sub-Merchant; (vi) Disburse funds in the form of cash, unless the Sub-Merchant 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 Sub-Merchant; (vii) disburse funds of cash unless Sub-Merchant 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 Bank and subsequently returned to the Sub-Merchant, irrespective of Customer approval; provided, that Sub-Merchant may re-originate an ACH Transaction up to two times within 180 days if the initial ACH Transaction was returned for insufficient or uncollected funds. Sub-Merchant may pursue payment from the Customer outside the PressPay Services; (ix) Accept a Visa Consumer Credit Card or Commercial Visa Product, issued by a U.S. issuer, 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 merchant providing the associated goods or services; (x) Enter into interchange a Transaction that represents collection of a dishonored check; (xi) 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; (xii) Change any aspect of what goods or services it sells or how they are sold without prior written consent of PressPay and Bank; (xiii) Request a Card Verification Value2 (“CVV2”) for a card present transaction nor 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 Sub-Merchant. Sub-Merchant shall post a privacy policy that complies with the Rules and applicable law to its website and shall honor the terms thereof.

15. Reserves

Where deemed necessary or appropriate by Bank or PressPay, Bank shall create a Reserve in order to protect Bank or PressPay from actual or potential liabilities hereunder. The Reserve will be in an amount determined by PressPay in its sole and absolute discretion to cover anticipated chargebacks, returns, unshipped Product and/or unfulfilled services, Reversals, Returns, or other amounts owing by Sub-Merchant hereunder, or credit risk based on Sub-Merchant processing history. The Reserve may be raised, reduced or removed at any time by Bank or PressPay. Where the Reserve is not adequately funded, Sub-Merchant shall pay all amounts requested by PressPay for the Reserve within one (1) business day of a request for such amounts and Bank and PressPay may build the Reserve by off-sets from Transaction settlements or by debiting any bank account of the Sub-Merchant by ACH. Sub-Merchant grants PressPay a security interest in and lien on any and all funds held in any Reserve, and also authorizes PressPay to make any withdrawals or debits from the Reserve, without prior notice to Sub-Merchant, to collect amounts that Sub-Merchant owes PressPay under this Agreement, including without limitation, for any Reversals or other reversals of deposits or transfers. Sub-Merchant will execute any additional documentation required for PressPay to perfect PressPay's security interest in any funds in the Reserve. This security interest survives for as long as PressPay 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. Sub-Merchant irrevocably assigns to PressPay all rights and legal interests to any interest or other earnings that accrue or are attributable to the Reserve.

16. Customer Data Security and Compliance

If Sub-Merchant collects, stores, uses or discloses any Customer Data, Sub-Merchant 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 PressPay. Without limiting the foregoing, Sub-Merchant shall comply to the extent applicable with NACHA Rules requiring certain large ACH Transaction originators to render account numbers unreadable when stored at rest electronically. Sub-Merchant 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. Sub-Merchant has exclusive responsibility for security of Customer Data and other information on Sub-Merchant systems or those under its control. Sub-Merchant is aware of and shall comply with all applicable laws, Rules, and regulations in connection with Sub-Merchant collection, security and dissemination of any personal, financial, or transaction information. Without limitation, Sub-Merchant 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 PressPay or any third party. Sub-Merchant 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 Sub-Merchant or one of its Third Party Servicers, Sub-Merchant shall immediately notify PressPay thereof and also comply with all applicable laws and Rules concerning the breach. Sub-Merchant 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 Sub-Merchant or its agents or Third Party Servicers under Sub-Merchant’s relationship with its Customer or otherwise for use by PressPay, Processor, Bank and all third parties as set forth in this Agreement and that assist in the delivery of the PressPay Services. Sub-Merchant shall indemnify and hold PressPay and Bank harmless from and against any liability arising on account of or in relation to the failure by Sub-Merchant to obtain consents from Customers related to their information or cards. Sub-Merchant expressly consents for PressPay, Processor, Bank and all third parties that assist in the delivery of the PressPay Services to collect, use, store and disclose PressPay information, including that provided in the Application, information concerning Customers, Transactions, and the business of the Sub-Merchant in order to supply the PressPay Services, generate reports, to reduce fraud, provide customer support, create and share aggregated and/or anonymized data concerning Sub-Merchant Customers and Customer Data, and the PressPay Services and assessing the risk associated with the Sub-Merchant. Payment Networks shall have the right to use Sub-Merchant name, address, and internet addresses and Sub-Merchant authorizes PressPay to provide any such Payment Networks with any of Sub-Merchant’s information requested by the Payment Network. PressPay reserves the right, at its sole but reasonable discretion, without prior consent of Sub-Merchant, to make reasonable changes to the PressPay Services or implement other risk management controls deemed necessary by PressPay or its suppliers to manage risk. Sub-Merchant shall comply with all such changes.

17. Taxes

Sub-Merchant has the exclusive responsibility to calculate, charge, collect and remit state and other taxes applicable to Product sales. PressPay may have tax reporting responsibilities in connection with the PressPay Services such as an Internal Revenue Service report on Form 1099-K.

18. Refunds and Returns

Sub-Merchant agrees to process returns of, and provide refunds and adjustments for Products in accordance with this Agreement and the Rules. The Rules require that Sub-Merchant will: (i) maintain a fair return, cancellation or adjustment policy; (ii) disclose Sub-Merchant return or cancellation policy to Customers at the time of purchase; (iii) not give cash refunds to a Customer in connection with a payment card sale, unless required by law; and (iv) not accept cash or any other item of value for preparing a payment card sale refund. Sub-Merchant’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.

19. Chargeback Liability

The amount of a Card Transaction may be charged back to Sub-Merchant for a variety of reasons under the Payment Network 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. Sub-Merchant is responsible for all chargebacks and Reversals, whether or not the chargeback or Reversal complies with the Rules. Sub-Merchant shall immediately pay PressPay the amount of all chargeback and related Fees, fines, or penalties assessed by the Bank, Processor, the Payment Networks or any other third party. If Sub-Merchant does not have sufficient funds in its bank account(s) to pay such amounts, PressPay can offset the amounts thereof from other Transaction amounts owing to Sub-Merchant hereunder, debit the amount by ACH Transaction from the Sub-Merchant's bank account(s) or oblige Sub-Merchant to make immediate payment thereof. If PressPay determines that Sub-Merchant is incurring an excessive amount of chargebacks, Returns or Reversals, PressPay or the Bank may establish controls or conditions governing Sub-Merchant’s Account, including without limitation, by: (i) assessing additional Fees; (ii) creating a Reserve in an amount reasonably determined by PressPay; (iii) delaying payment; and (iv) terminating or suspending the PressPay Services or closing the Account. Sub-Merchant 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 PressPay as PressPay may request.

20. Recoupment of Funds Owing to PressPay

Where amounts are owing from Sub-Merchant to PressPay hereunder, PressPay shall have the right to immediately, without prior consent or notice, offset or debit such amounts from funds: (i) deposited by Sub-Merchant; (ii) due to Sub-Merchant under this Agreement; (iii) held in the Reserve; or (iv) available in Sub-Merchant bank account(s), or other payment instrument registered with the Bank. Sub-Merchant’s failure to pay in full amounts that Sub-Merchant owes PressPay on demand will be a breach of this Agreement. Sub-Merchant will be liable for PressPay 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 rate permitted by applicable law. In its discretion, PressPay may make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution. Sub-Merchant hereby expressly agrees that all communication in relation to delinquent Accounts will be made as permitted under this Agreement. Such communication may be made by PressPay or by anyone on its behalf, including but not limited to a third party collection agent.

21. Escheatment

If there is no activity in an Account for the period of time set forth in the applicable unclaimed property laws, and Sub-Merchant has a credit, PressPay may notify Sub-Merchant by sending an email to Sub-Merchant’s registered email address. PressPay may also notify Sub-Merchant by U.S. mail. PressPay will give Sub-Merchant the option of keeping the Account open, withdrawing the funds, or requesting a check. If Sub-Merchant does not respond to PressPay notice within the time period specified in the notice, PressPay may close the Account and Sub-Merchant funds may escheat in accordance with applicable law.

22. Recordkeeping

Sub-Merchant 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 Sub-Merchant’s Account. If Sub-Merchant believes that there is an error associated with Sub-Merchant’s Account, Sub-Merchant must notify PressPay in writing within 60 days after the suspected error occurred. Sub-Merchant’s failure to notify PressPay within such time period will result in PressPay not being responsible for investigating or effecting any requested adjustments as a result of any error.  Upon five (5) business days’ notice or immediately upon the direction of a Payment Network, a Payment Network, or PressPay at the direction of a Payment Network, may conduct an on-site audit of Sub-Merchant, and Sub-Merchant agrees to cooperate with such audit.

23. Term and Termination

The Agreement shall become effective when it is accepted by both parties hereto and shall terminate as set forth herein.  PressPay and Bank have the right to terminate this Agreement at any time for any reason or for no reason. On any termination hereof, Sub-Merchant shall immediately cease using the PressPay Services and the Account. PressPay shall have the right to delete all Account information on any termination hereof, but it also has the right to retain copies thereof for up to five (5) years. PressPay and Bank shall not have any liability to Sub-Merchant resulting from a termination hereof. This Agreement shall terminate immediately if a Payment Network requires PressPay to terminate this Agreement. Sub-Merchant may terminate this Agreement by closing Sub-Merchant's Account at any time. When Sub-Merchant closes the Account, any pending Transactions will be cancelled. Any funds that the Bank is holding in custody for Sub-Merchant at the time of closure, less any applicable Fees and other liabilities of Sub-Merchant, will be paid out to Sub-Merchant according to Sub-Merchant's payment schedule. Bank may also withhold such funds pending investigation of Sub-Merchant Transactions or potential liabilities hereunder. On any termination hereof, Sub-Merchant shall remain liable hereunder for any and all Fees or costs accrued prior to or following termination and any other amounts owed by Sub-Merchant to PressPay, Bank or a Payment Network.

24. Marks/IP

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

25. Indemnification

Sub-Merchant shall indemnify, defend and hold PressPay, its Processor, Bank, Payment Networks and all third parties that assist in providing the PressPay 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 Sub-Merchant representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of PressPay policies or the Rules; (ii) Sub-Merchant’s wrongful or improper use of the PressPay Services; (iii) any Transaction submitted by Sub-Merchant through the PressPay Services (including without limitation the accuracy of any Product information that Sub-Merchant provides or any claim or dispute arising out of Products offered or sold by Sub-Merchant); (iv) Sub-Merchant’s violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (v) Sub-Merchant’s violation of any applicable law; or (vi) any other party's access and/or use of the PressPay Services with Sub-Merchant’s access credentials.

26. Sub-Merchant Representations

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

27. No Warranties

THE PressPay SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. USE OF THE PressPay SERVICES IS AT SUB-MERCHANT’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PressPay 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.

28. Limitation of Liability

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

29. Direct Merchant Status

Certain Payment Networks may require that Sub-Merchant enter into a direct contractual relationship with the Bank if certain criteria are met.  These criteria are met if the Sub-Merchant processes more than $1,000,000 in payment transactions through Visa or MasterCard in a twelve-month period.  If this happens, Sub-Merchant will immediately become bound by Processor’s then current direct merchant agreement, the current version of which is set forth at https://justpresspay.com/terms, (the “Direct Merchant Agreement”) whereby in such Direct Merchant Agreement, Sub-Merchant may be referred to as Merchant and be party to the Direct Merchant Agreement along with the Processor and the Member Bank(s) listed in the Direct Merchant Agreement.  If Sub-Merchant becomes bound by the Direct Merchant Agreement, the Member Bank providing Transaction settlement funds into Sub-Merchant’s bank account(s) will be the acquirer with regard to those Transactions.  Full contact information for each Member Bank is set out in the Direct Merchant Agreement.  Additionally, in the event Sub-Merchant is participating in certain business categories and has Charge Volume in excess of (1) $1,000,000 in a rolling twelve month period, or (2) $100,000 in any three consecutive months (“High CV Merchant”), American Express may convert Sub-Merchant to a direct Card acceptance relationship.  Upon conversion, Sub-Merchant will be bound by American Express’ then-current Card Acceptance Agreement and corresponding pricing and fees.   Sub-Merchant 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.comand www.discover.com. In the event of any inconsistency or conflict between any provision of this Agreement and the Rules, the Rules shall govern.  Sub-Merchant agrees to comply with the specific requirements set forth in the American Express Program requirements set forth below in these terms and conditions, regardless of the amount of American Express charge volume.

30. Sub-Merchant Obligations with Respect to ACH Transactions

Sub-Merchant shall be primarily liable to PressPay for any credit entries originated and for any debit entries returned or reversed.  In addition to its other obligations hereunder with respect to Transactions, Sub-Merchant agrees as follows with respect to ACH Transactions:

(i) Sub-Merchant shall prepare and submit all electronic entries to PressPay in accordance with the terms, conditions and specifications set forth herein and as PressPay may specify from time to time.  Sub-Merchant shall not cancel or amend any entry after its submission to PressPay other than as permitted by PressPay in PressPay’s sole discretion.

(ii) Sub-Merchant shall comply at all times with all data security rules promulgated by NACHA.  Without limiting the foregoing, Sub-Merchant shall transmit all entries via a secured electronic network or via a commercially reasonable security technology acceptable to PressPay and compliant with the NACHA Rules.  Sub-Merchant shall (a) establish, maintain and update commercially reasonable security measures to maintain the confidentiality of Customers’ account numbers, routing numbers, non-public personally identifiable information, and sales information and (b) maintain processes and procedures to protect against unauthorized transactions and network infections and to verify the identity of routing numbers and receivers.

(iii) Sub-Merchant shall ensure the correctness, both as to content and form, of all entries and information submitted to PressPay.  If any information is not readable, out of balance, or un-processable, Sub-Merchant shall correct and resubmit the information to PressPay.  PressPay is not responsible for detecting any errors in the transmission or content of any entries, including duplicate entries.   PressPay may reject any entry submitted by Sub-Merchant.  In the event that an entry is rejected for any reason, Sub-Merchant shall remake such entry.

(iv) Sub-Merchant shall not originate an ACH Transaction with respect to any Customer until Sub-Merchant has obtained from such Customer an authorization (an “Authorization”), as required by the NACHA Rules and reasonably acceptable to PressPay, 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 the requirements of the Electronic Signatures in Global and National Commerce Act (E-Sign) 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.  Sub-Merchant shall retain the original or a copy of the Authorization as prescribed in the NACHA Rules and, upon PressPay’s request, shall promptly furnish to PressPay an original or a copy of the Authorization.  Should Sub-Merchant 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) Sub-Merchant 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.  Without limiting the foregoing, Sub-Merchant shall comply with NACHA Rules that require all merchants who accept ACH to have “commercially reasonable” processes in place that validate routing numbers and verify that its Customer’s bank account is in good standing.  In the event that the operating rules of a local or regional clearing house, or the arrangements between PressPay and a depository institution, are more restrictive than the NACHA Rules, Sub-Merchant shall comply with such rules.  

(vi)      Sub-Merchant shall not originate any entries that violate the laws of the United States.  Without limiting the foregoing, Sub-Merchant 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 Sub-Merchant shall not originate any Transactions for Customers with respect to which U.S. companies are so restricted.

31. Confidentiality

Unless otherwise required by law, Sub-Merchant shall, and shall cause its Affiliates to, hold in strict confidence at all times following the date hereof all PressPay, Bank and Processor Confidential Information, and neither Sub-Merchant nor any of its Affiliates shall use such Confidential Information for any purpose other than for the performance of Sub-Merchant’s duties and obligations hereunder. If Sub-Merchant breaches, or threatens to breach, any of the provisions of this section, in addition to any other rights PressPay may have, including a claim for damages, PressPay shall have the right to have the provisions of this section specifically enforced, and Sub-Merchant’s breach or threatened breach enjoined, by any court of competent jurisdiction, without presentment of a bond (such requirement being expressly waived by Sub-Merchant), it being agreed that any breach or threatened breach of this section would cause irreparable harm to PressPay in that money damages would not provide an adequate remedy.

32. Arbitration

PressPay and Sub-Merchant shall settle all disputes relating in any way to this Agreement or arising from or in respect of this Agreement exclusively by binding arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) according to this provision and the applicable arbitration rules. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Arbitration shall take place in Nassau County, New York before a single arbitrator who is a lawyer practicing commercial law. ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND SUB-MERCHANT IS HEREBY WAIVING SUB-MERCHANT’S RIGHTS TO HAVE ANY CLAIMS ARISING HEREUNDER DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST PressPay. In the event that Sub-Merchant or PressPay are not able to resolve a Dispute with American Express, or a claim against PressPay or any other entity that American Express has a right to join, the American Express Program requirements set forth below in these terms and conditions will apply.

33. Governing Law

The validity, construction and performance of this Agreement shall be governed and construed in accordance with the laws of New York applicable to contracts made and to be wholly performed within such state, without giving effect to any conflict of laws provisions thereof. The Federal and state courts located in Nassau County, New York shall have sole and exclusive jurisdiction over any disputes arising under the terms of this Agreement.

34. Limitation on Time to Initiate a Dispute

Unless otherwise required by law, an action or proceeding by Sub-Merchant relating to any dispute or claim by Sub-Merchant hereunder must commence within one year after the cause of action accrues failing which Sub-Merchant foregoes any rights in respect thereof.

35. Amendment of Agreement

PressPay reserves the right to modify the PressPay Services or change or add to the terms of this Agreement or any exhibit, attachment or document linked hereto at any time with electronic notice to Sub-Merchant through the Account, or by such other means as it may select, in a manner and at such time as PressPay deems reasonable. Such changes and additions may be to any of the terms hereof, including but not limited to Fees. If Sub-Merchant continues to process Transactions after actual or constructive notice of change(s) and/or addition(s) by PressPay, Sub-Merchant will be deemed to have accepted the change(s) and/or addition(s). This Agreement may also be amended by written agreement between the parties hereto.

36. Independent Contractors

The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint ventures or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractors.  Sub-Merchant is responsible for ensuring compliance of its employees and agents with the terms of this Agreement.  Further, Sub-Merchant is responsible for the actions of its employees and agents.

37. Guaranty

If an individual executes this Agreement on behalf of Sub-Merchant as a guarantor following a request by PressPay, then such individual personally guarantees performance by the Sub-Merchant hereunder, shall be deemed to be a Guarantor for all purposes, and shall be joint and severally liable with Sub-Merchant for all liabilities of the Sub-Merchant hereunder.

38. Assignment

The Sub-Merchant may not assign or otherwise transfer any or all of its rights or obligations under this Agreement without PressPay's prior written consent, and any assignment without such prior written consent will be null and void. PressPay and Bank may assign any of its rights or obligations hereunder to a third party on electronic notice to Sub-Merchant through the Account.

39. Electronic Signatures, Notices and Electronic Communication

When provided to Sub-Merchant for execution in electronic form, this Agreement and all related electronic documents, shall be governed by the provisions of the Electronic Signatures in Global and National Commerce Act. By pressing Submit, Accept or I Agree, Sub-Merchant agrees (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, (iii) that Sub-Merchant has the ability to print or otherwise store the Agreement and related documents, and (iv) to authorize PressPay to conduct an investigation of Sub-Merchant’s credit history and that of its principals with various credit reporting and credit bureau agencies for the sole purpose of determining acceptance of this Agreement and ongoing performance hereunder as described in Sections 5 and 10 of these terms and conditions to the Agreement. Sub-Merchant agrees to receive all communication under this Agreement by electronic means (which may also be by phone, and may be made by PressPay or by anyone on its behalf), including but not limited to communications regarding agreements and policies, such as this Agreement and PressPay's privacy policy. Sub-Merchant shall make sure that its primary email address is up to date in the Account and it shall check that email periodically and not less than once per week. In the event that any email from PressPay or other communication is blocked by a spam filter or other issue outside of the control of PressPay, Sub-Merchant shall be deemed to have received the communication all the same. All notices and other communications required or permitted hereunder to be given to a party to this Agreement shall be in writing and shall be sent by electronic mail to the following addresses, if to PressPay, support@justpressay.com and if to Sub-Merchant, to the e-mail address indicated on the Account. Any notice sent in accordance with this section shall be effective upon transmission and electronic confirmation of receipt, or if transmitted and received on a non-business day, on the first business day following transmission and electronic confirmation of receipt. Any notice of default of PressPay sent to PressPay shall also be sent by courier to the address of PressPay appearing on the Site with proof of delivery.

40. Whole Agreement; No Waiver; Severability

No failure, delay of forbearance of either party in exercising any power or right hereunder will in any way restrict or diminish such party's rights and powers under this Agreement, or operate as a waiver of any breach or nonperformance by either party of any terms of conditions hereof. In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and the unenforceable provision shall be enforced to the maximum extent permissible under law. Nothing in this Agreement shall be construed or be deemed to create any rights or remedies in or for the benefit of any third party.

41. Survival

Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement shall survive and remain in effect in accordance with its terms upon the termination of this Agreement. For greater certainty but without limitation, the indemnification, limitation of liability and confidentiality clauses shall survive termination hereof.

42. Special Association Considerations

There are a few special rules regarding your participation in the Discover and American Express Card programs.

A. Discover. PressPay has no liability for not processing or settling a retained Discover merchant’s Discover Cards (as defined by Discover).

B. American Express. The following terms apply only to Sub-Merchant’s American Express Program (see the American Express Merchant Operating Guide, which can be located at http://www.americanexpress.com/merchantopguide for capitalized terms).  

i. Exchange of Information. Sub-Merchant authorizes PressPay to exchange transaction and settlement information with American Express on Sub-Merchant’s behalf.  

ii. American Express Program Terms. Sub-Merchant agrees to comply with the American Express Program terms provided in the Rules Summary, and the American Express Merchant Operating Guide, which can be located at http://www.americanexpress.com/merchantopguide.

iii. Disclosure and Use of Information. PressPay may disclose Transaction Data, Sub-Merchant Data, and other information about Sub-Merchant to American Express.  American Express may use the disclosed information for any lawful business purpose.  

iv. Direct Card Acceptance. In the event Sub-Merchant Charge Volume exceeds (1) $1,000,000 in a rolling twelve month period, or (2) $100,000 in any three consecutive months (“High CV Merchant”), American Express may convert Sub-Merchant to a direct Card acceptance relationship.  Upon conversion, Sub-Merchant will be bound by American Express’ then-current Card Acceptance Agreement and corresponding pricing and fees.

v. Bona Fide Sales, Encumbrances, Assignment. Sub-Merchant shall only sell bona fide goods and services at its establishment(s).  Sub-Merchant Card transactions shall be free of liens, claims, and encumbrances, other than ordinary Card tax.  Additionally, Sub-Merchant shall not assign any payments it is due under the Agreement to a third party.  However, Sub-Merchant may sell and assign future transaction receivables to PressPay or PressPay’s affiliated entities and/or any other cash advance funding source PressPay (or its affiliates) partner with.

vi. Third Party Beneficiary. This Agreement confers third party beneficiary rights in American Express for enforcing terms against Sub-Merchant.  It imposes no obligations on American Express.

vii. Opting Out. Sub-Merchant may opt out of accepting American Express Cards in writing without affecting Sub-Merchant’s rights to accept other payment products.

viii. Termination. PressPay may terminate Sub-Merchant’s right to accept American Express Cards if:  (i) Sub-Merchant breaches the Agreement; (ii) American Express instructs PressPay to do so; or (iii) Sub-Merchant engages in fraudulent or any other activity justifying termination.  

ix. Right to Bill and Collect Chargebacks. Sub-Merchant may not bill or collect from any American Express cardholder for any purchase or payment on the Card unless chargeback has been exercised, Sub-Merchant has fully paid for the charge, and Sub-Merchant otherwise has the right to do so.

x. Removal of Licensed Marks. Sub-Merchant agrees to remove any American Express Licensed Marks from its website or any other location when its participation in the Program ends.

xi. Refund Policies. Sub-Merchant agrees that its refund policies for purchases on the Card must be at least as favorable as its refund policy for purchase on any other payment product and the refund policy be disclosed to Card Members at the time of purchase and in compliance with applicable laws.

xii. Participation under American Express Program or EA Program. If Sub-Merchant does not participate in the American Express Program or EA Program, PressPay will have no liability for not processing or settling Sub-Merchant’s American Express transactions.  Further, American Express cards will not be included in the definition of Cards.

43. Glossary

"ACH" means the Automated Clearing House.

"ACH Transaction" means any ACH transaction originated by or on behalf of Sub-Merchant, conducted pursuant to the NACHA Rules and utilizing PressPay Services.

"Account" means a unique and private account (sometimes generally known as a merchant account or MID) provided by PressPay to Sub-Merchant accessible through the PressPay Services and in all instances subject to the terms and conditions of the Agreement.

"Affiliate" means, with respect to any 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 this PressPay Sub-Merchant Agreement between PressPay and Sub-Merchant, as the same may hereafter be amended, concerning the delivery and receipt of PressPay Services.

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

"Application" or "Sign-Up Form" means an electronic or paper form completed with input from the Sub-Merchant in relation to entering into the Agreement and procuring the PressPay Services and which includes a Fee Schedule setting forth the Fees, which shall form a part of the Agreement and constitutes representations by the Sub-Merchant hereunder.

"Bank" means a member of a Payment Network that has sponsored PressPay as a payment services provider, payment facilitator or otherwise to supply the PressPay Services and that acquires Transaction funds through Payment Networks.

"Card Transaction" means any transaction, other than an ACH Transaction, originated by or on behalf of Sub-Merchant, that is processed through a Payment Network and conducted utilizing PressPay Services.

"Confidential Information" means all non-public, proprietary data or information of any party hereto which is valuable to the operation of such party's business and is treated by such party as confidential. Confidential Information of a party MAY NOT include the identity of any vendor, client, customer, supplier or business contact of the other party, the fact that the other party has, or is trying to enter into, a business relationship with such third party, or the nature of the business relationship with such third party.

"Content" means any material and/or data obtained by Sub-Merchant from or through the PressPay Services.

"Customer" means a client, customer or donor of Sub-Merchant.

"Customer Data" means information associated with a payment card, 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.

"Discover" means Discover Financial Services, Inc.

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

"Equipment" means equipment provided to Sub-Merchant by PressPay or its suppliers, including Platform, and includes imprinters, authorization terminals and other similar devices, printers, software, and credit card authenticators.

"Fees" means the fees of PressPay for which Sub-Merchant is liable in exchange for the PressPay Services, including, but not limited to, any rental, purchase, or license of terminals, equipment, software, supplies, or other services or products provided by PressPay. Fees are set out in the Application. Fees may be amended in accordance with this Agreement. Fees may also change, in accordance with this Agreement, if Payment Networks or other third parties impose additional fees on PressPay for the supply of the PressPay Services or on amendments to applicable law that require PressPay to amend the Fees.

"Guarantor" means any Person guaranteeing the PressPay obligations, either as indicated on the Application or otherwise.

"Mastercard" means Mastercard International Incorporated.

"NACHA" means the National Automated Clearinghouse Association.

"NACHA Rules" means operating rules and guidelines promulgated by NACHA and governing ACH Transactions or the related activities of parties involved in ACH Transactions, as amended or modified from time to time.

"Payment Network" means Visa, Mastercard, Discover, American Express, NACHA and such other payment networks as PressPay indicates are compatible with the PressPay Services.

"Payment Network Rules" means, collectively, the by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the PCI DSS, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by any Payment Network or other private or public association or organization, applicable to the PressPay Services and Card Transactions or the related activities of parties involved in Card Transactions, as amended or modified from time to time.  Payment Network Rules do not include the NACHA Rules.

"PressPay" means PressPay Solutions, LLC and its successors and assigns.

"PressPay Services" means the payment processing services of PressPay and its processor and acquiring bank, the Site, any software, programs, services, documentation, tools, hardware, internet-based services, and components thereto provided directly or indirectly to Sub-Merchant by PressPay.

"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, card issuer, NACHA, 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, PressPay to the extent attributable to, arising out of, or related to Sub-Merchant’s (i) Transactions or business, or (ii) breach or alleged breach of any provision in this Agreement.

"Person" is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity.

"Platform" means any third-party utilized by PressPay to administer and service the Account of Sub-Merchant.

"Platform Fees" are those fees occurring in connection with Sub-Merchant’s use of a Platform.

"Processor" means a payment processor that has contracted with PressPay to assist PressPay in delivering the PressPay Services. PressPay currently uses Checkout.com Inc. as its processor: With an address of 40 10th Ave New York, NY 10014.

"Product" means any product or service offered for sale or sold by Sub-Merchant.

"Prohibited Activity" means any activity deemed to be prohibited by PressPay, the Processor or the Bank, as communicated to Sub-Merchant from time to time. For the current list of Prohibited Activities, see attached Prohibited Activity Schedule.

"Reserve" means a reserve account established and maintained to protect by Bank or PressPay from actual or potential liabilities under the Agreement.

"Return" means the return of an ACH Transaction 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 Transaction entry for various reasons including incorrect account number or type, incorrect amount, or duplicate transaction.

"Rules" means the Payment Network Rules and the NACHA Rules.

"Service Delivery Process" means PressPay’s then standard methods of communication, service and support, including but not limited to communication via an online Sub-Merchant portal, email communication, statement notices, other written communications, etc.

"Site" means www.PressPay.com.

"Sub-Merchant" means the Person accepting the Agreement and receiving PressPay Services thereunder.

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

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

"Transaction" means an ACH Transaction or a Card Transaction originated by or on behalf of Sub-Merchant conducted utilizing any of the PressPay Services.

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

PROHIBITED ACTIVITY SCHEDULE

"Prohibited Activity" means: any adult content; airlines, including charter airlines; alimony, child support, or other court-ordered payments; bidding fee auctions, including penny auctions; brand or reputation damaging, potential or otherwise, including bestiality, child pornography, escort services, mail order brides, and occult; buyers’ clubs, discount clubs or membership clubs; check cashing, or payment for a dishonored check or for an item deemed uncollectible by another merchant; commodity trading or security trading; cruise lines; credit counseling or credit repair agencies; counterfeit or possibly counterfeit goods, or products that infringe on the intellectual property rights of others; debt collection, consolidation, or reduction services; deceptive, unfair, predatory products, services or activities, or prohibited by the card payment networks; digital currency; discount medical or dental plans including discount insurance; distressed property sales and marketing; door to door sales; drugs, alcohol, or drug paraphernalia, pseudo-pharmaceuticals, substances designed to mimic illegal drugs, or items that may represent them; factoring, liquidators, bailiffs, bail bondsmen; financial services or instruments, such as cash advances, bill payment, loans or loan payments, money orders, money transfers, prepaid cards, wire transfers, or sales of money orders or foreign currency; gambling or betting, including lottery tickets, casino gaming chips, off-track betting, sports forecasting or odds making, fantasy football, memberships on gambling-related internet sites and wagers at races, contests, sweepstakes, and offering prizes as an inducement to purchase goods or services; hate, violence, racial intolerance, or the financial exploitation of a crime; high interest rate non-bank consumer lending including payday lending and title loans; infomercial merchants; internet pharmacies or pharmacy referral sites; investment or “get rich quick” merchants, businesses or programs; l marijuana dispensaries and related products or services; marketing activities involving “pay only for shipping” and/or “free trial” periods; medical equipment; multi-level marketing businesses, pyramid or ponzi schemes; merchants using negative options,or similar continuity subscription practices; obscene or pornographic items; pawn shops; pharmaceuticals, including medical marijuana; prostitution, escort services, massage parlors, and other potentially sexually related services; real estate or motor vehicle sales; scrip-dispensing terminal; selling of mobile minutes; selling or sales of social media activity; stored value or quasi-cash; timeshares, timeshare resales and related marketing; tobacco, cigarettes, or e-cigarettes; unlawful activities or items, or activities or items that encourage, promote, facilitate or instruct others regarding the same; violent acts towards self or others, or activities or items that encourage, promote, facilitate or instruct others regarding the same; virtual currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exist in the virtual world; weapons, including replicas and collectible items, or ammunition or other accessories; weight loss programs; goods or services to be delivered more than two (2) months in the future, with an intention of gaining return on investment; internet auctions; .  In addition and included as a Prohibited Activity, merchant may not use the PressPay Services for; impersonating any person or entity or falsely claiming an affiliation with any person or entity; collecting, or attempting to collect, personal information about merchants or third parties without their consent, or using such information except as necessary to use the service; sending unsolicited offers, advertisements, proposals, or junk mail or spam to others, this includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation materials, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signature; accepting payments for goods or services provided by someone other than merchant; providing merchant itself or others with a cash advance from a credit card; any illegal purpose, or violating any local, state, national, or international law, statute, or regulation, including, without limitation, laws governing intellectual property, taxation, and data collection and privacy; defaming, harassing, abusing, threatening, or defrauding others; posting, transmitting, or distributing content that is false, misleading, unlawful, obscene, indecent, lewd, pornographic, hateful, abusive, inflammatory, or that violates the rights of others (including rights of publicity or privacy); damaging, disabling, overburdening, or impairing PressPay, including without limitation, using the service in an automated manner; interfering with another merchant's enjoyment of the service, by any means, including by uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code; competing with PressPay or PressPay’s business partners; sending or receiving what PressPay considers to be funds for something that may have resulted from fraud or other illegal behavior; abusing the payment card system or violating the rules, in the reasonable opinion of the card payment networks or PressPay; operating outside the United States; acting as a money services business or money transmitter; transferring funds between bank accounts held in the same name; creating an account that is linked to another account that has engaged in any of the foregoing activities. PressPay may use evidence other than merchant account information to determine whether merchant controls an account in someone else's name, including but not limited to internet protocol addresses, common business names, phone numbers, and mailing addresses; or any activity deemed by PressPay to be unauthorized, illegal, or criminal.

PAYMENT GATEWAY MERCHANT SERVICES AGREEMENT 

Fluid Pay, LLC, referred to herein as “Payment Gateway”, offers various payment processing and  other value-added products and services directly, and through Third Party Service Providers. In order for  you, on behalf of your company (hereinafter, “MERCHANT”) to obtain or continue using these products  or services, which services are described at www.justpresspay.com (which descriptions may be changed from time  to time)(the “Payment Gateway Services”), you must agree to and accept the terms and conditions of this  Payment Gateway Merchant Services Agreement (the “Agreaement”). By accepting the terms of this  Agreement, either by continuing to use any of the Payment Gateway Services and/or by clicking on the “I  AGREE” button at the end of this Agreement (if in electronic format), MERCHANT agrees to be bound  by the terms and conditions of the same. MERCHANT further agrees that MERCHANT has had the time  to thoroughly read and understand this Agreement, has had the opportunity to have the same reviewed by  counsel, and has had the opportunity to ask questions regarding the same.  

NOW THEREFORE, MERCHANT agrees as follows: 

1. DEFINITIONS: 

“Acquirer” or “Acquiring Bank” or “Acquiring Institution” means a financial institution that  supplies MERCHANT with the ability to accept credit cards for payments, for which the financial  institution charges fees.  

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

“PARTNER” means any third party through whom Payment Gateway may offer the Payment Gateway  Services to MERCHANT, including but not limited to an “ISO” or “Independent Sales Organization”,  Merchant Service Provider (“MSP”), Value Added Reseller (“VAR”), Application Service Provider  (“ASP”), Acquiring Bank or Financial Institution. 

“API” or “Application Programming Interface” means a computer interface allowing integration with  a programmable software package or platform. 

“AVS” or “Address Verification Service” for the purposes of this agreement shall mean the response  generated by the Issuing Bank, which response provides the level of accuracy of a given address based on  the billing address of the customer's credit card. 

“Batch” means any bulk processing of Transactions, or a bulk settlement submitted to a Processor by  Payment Gateway including credit card, ACH, and other related transactions. 

“Card Association” for the purposes of this Agreement means a network of Issuing Banks and Acquiring  Banks that process payment cards of a specific brand. The Card Association includes American Express,  Discover Financial Services, JCB International, MasterCard International Inc., Visa Inc., and Visa  International Inc., among others. 

“Close Batch” means the process of sending a batch of transactions for settlement. “Confidential Information” means any information, whether oral or in writing, whether tangible or  electronic, that includes but shall not be limited to data, trade secrets, know-how derived through the inspection of samples, equipment or facilities, and includes past, present and future research, products,  product plans, services, services documentation (in whatever form provided) customers, customer lists,  contracts or other legal documents, financial or other business information, formulas, inventions, revenue,  markets, software code and/or hardware configuration, marketing, marketing materials, user data, or the  parties to or financial terms of this Agreement. 

“Discount Rate” means the fee charged by MERCHANT financial institution for services associated  with processing card transactions, or fees charged by Payment Gateway for ACH or other payment  methods. 

“Effective Date” means the earlier of the date MERCHANT agrees to the terms and conditions of the 

Agreement by (i) clicking the “I AGREE” button associated with the Agreement (if in electronic format);  (ii) by using Payment Gateway Services; or (iii) by acknowledging MERCHANT acceptance of the  Agreement by any other method, including without limitation execution of a Merchant Account  Application that incorporates this Agreement by reference. 

“Fee Schedule” means a list of fees and charges that is accepted by MERCHANT and paid by  MERCHANT to Payment Gateway. 

“Interchange Fee” means the fee set by and collected by the Card Association from MERCHANT financial institution (Acquiring Bank) and paid to the issuing financial institution (Issuing Bank) to cover  expenses incurred in billing the cardholder. 

“IP Address” means an internet address represented in series of four numbers separated by commas (e.g.  127.1.1.0). 

“Issuing Bank” means the financial institution that issues Card Association branded Payment Cards  directly to consumers. 

“MERCHANT’s Marks” means all common law and/or registered trademark(s), service mark(s), trade  name(s), trade dress rights, moral rights, rights of publicity and/or similar or related rights under any laws  of any country or jurisdiction, including but not limited to the United States of America, whether existing  now or hereafter adopted, belonging to MERCHANT, and includes such other trademarks as  MERCHANT may from time to time designate as “MERCHANT’s Marks”. 

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

“Payment Gateway Marks” means all common law and/or registered trademark(s), service mark(s),  trade name(s), trade dress rights, moral rights, rights of publicity and/or similar or related rights under any  laws of any country or jurisdiction, including but not limited to the United States of America, whether  existing now or hereafter adopted, belonging to Payment Gateway, and includes trademarks that Payment  Gateway may from time to time as being “Payment Gateway Marks”. 

“Privacy Policy” means the then current Payment Gateway Privacy Policy which can be found on the  internet at www.justpresspay.com

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

“Third Party Service Provider” for purposes of this Agreement means an entity that provides bank  and/or merchant payment services including but not limited to billing, reporting, customer service,  authorization, and/or settlement services. 

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

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

“VAR” or “Value Added Reseller” means any third-party vendor that enhances, modifies or existing  hardware or software, thereby adding value to the services provided by the gateway processor or  acquirer. 

2. AUTHORITY: 

By accepting the terms and conditions of this Agreement, MERCHANT represents and warrants that (a)  the person executing this Agreement on MERCHANT’s behalf is 18 years of age or older, (b) all  information MERCHANT has provided in connection with this Agreement is true and correct in all  respects, and (c) MERCHANT will update any information that becomes outdated by notifying Payment  Gateway of any changes to such information. MERCHANT further represents and warrants that the  undersigned individual has the legal authority to accept the terms and conditions of this Agreement and that 

such acceptance will be binding on MERCHANT. Payment Gateway reserves its right, in its sole  discretion, to refuse to provide MERCHANT with any service based if MERCHANT have supplied any  information which is misleading, untrue, inaccurate or incomplete.  

3. TERM: 

This Agreement shall commence on the Effective Date and shall remain in full force and effect until  terminated pursuant to Section 10. 

4. PAYMENT GATEWAY SERVICES RIGHTS OF USE: 

4.1 Payment Gateway Grant of Rights 

(a) MERCHANT is hereby granted a non-exclusive right to use the Payment Gateway Services during  the Term so long as MERCHANT’s account is paid and current as to any of the fees or charges  referenced in Sections 8 & 9 hereof, which right is subject to the restrictions contained in this  Agreement.  

(b) In connection with the exercise of MERCHANT’s rights and obligations under this Agreement  including, but not limited to any related to individual privacy, MERCHANT will comply, at  MERCHANT’s expense, with all applicable laws, regulations, rules, ordinances and orders of  governmental authorities having authority or jurisdiction over activities described in this Agreement.  MERCHANT shall not use the Payment Gateway Services in any manner, or in furtherance of any  activity, the exposes Payment Gateway to liability or potential liability for any legal or regulatory  action. A non-exclusive list of prohibited purposes for which MERCHANT may not use Payment  Gateway’s Services is attached hereto as Exhibit “A”.  

(c) MERCHANT’s use of the Payment Gateway Services shall be restricted to MERCHANT. MERCHANT   shall not process orders on behalf of any other entity or individual. Any attempt by MERCHANT to   use the Payment Gateway Services on behalf of another entity or individual may result in   MERCHANT’s obligation to pay Payment Gateway additional fees and charges. Payment Gateway   may further revoke MERCHANT’s right to use the Payment Gateway Services and terminate this   Agreement. 

(d) MERCHANT shall comply with Payment Gateway’s current policies, procedures, and guidelines  pertaining to the Payment Gateway Services. Payment Gateway reserves the right to amend, modify  or change its rules, policies, procedures, and guidelines at any time, in its sole discretion. 

5. DATA SECURITY, TRANSFER, COLLECTION, RETENTION & DESTRUCTION: 5.1 MERCHANT’s Obligations 

(a) MERCHANT agrees that it will comply at all times with all applicable and then-current legal  obligations and security measures, including without limitation those issued by the United States  Government, those required by federal, state and/or municipal laws and ordinances, and those required  by the Card Association, the Federal Trade Commission (“FTC”), PCI DSS or any other governing  body of competent jurisdiction. MERCHANT agrees that MERCHANT will comply with all Payment  Gateway security protocols, notices and safeguards in effect during the term of this Agreement.  MERCHANT warrants that MERCHANT has taken such precautions as are necessary to ensure that  MERCHANT’s data and MERCHANT’s customer data is protected and that MERCHANT’s computer  systems are secure from breach, intrusion or compromise by unauthorized third parties. MERCHANT 

shall have policies and procedures in place that limits employees’ use of and access to MERCHANT’s  data or Transaction Data. In the event that MERCHANT’s system is breached, and/or an unauthorized  third party has access to or has accessed Data or Transaction data, MERCHANT shall immediately  notify Payment Gateway, and such other parties as are required to receive notice under any applicable  law or industry guideline. In the event of a breach or compromise of MERCHANT’s systems  MERCHANT shall take immediate action to prevent an additional or continuing breach of its systems  or loss of its data or Transaction data. 

(b) MERCHANT is solely responsible for the security of data residing on MERCHANT’s server(s), or  those of Third Party Service Providers, or any other third party designated by MERCHANT (e.g., a  web hosting company, processor, or other service provider), including credit card numbers and any  other personal data. MERCHANT shall further comply with all applicable laws and regulations  concerning the collection, retention and use by MERCHANT of credit card and other financial  information. MERCHANT agrees to have Privacy Policies and Terms of Use documents on its website,  in a clear and conspicuous manner, that informs MERCHANT’s customers how their data is used,  including disclosures concerning uses governed by this Agreement. 

(c) MERCHANT agrees that MERCHANT is solely responsible for verifying the accuracy and  completeness of all Transactions submitted to and processed by Payment Gateway associated with  MERCHANT’s account, and for verifying that all corresponding funds are processed accurately.  MERCHANT acknowledges that the fees Payment Gateway earns by and through transactions  processed through MERCHANT’s account are earned in full and non-refundable. MERCHANT  acknowledges that Payment Gateway shall not be liable for any improperly processed or unauthorized  Transactions, or for illegal or fraudulent access to MERCHANT’s account, Data or Transaction data.  Payment Gateway’s liability for unauthorized Transactions or improperly processed Transactions  solely attributable to the negligence of Payment Gateway is limited pursuant to Section 13. 

(d) MERCHANT agrees not to use, disclose, sell or disseminate any card, cardholder or ACH information  obtained in connection with any Transaction except for the purposes of completing or settling a  Transaction, and/or for the purpose of resolving chargebacks, retrievals or similar issues involving a  Transaction, unless required to do so by a subpoena, warrant, request for production, or other order of  any governmental body of competent jurisdiction. In the event that MERCHANT is served with any  such subpoena, warrant, request for production, or other order, whether informally or from a court or  governmental body of competent jurisdiction, MERCHANT shall immediately notify Gateway  Provider that such information is being sought, such that the Gateway Provider may seek appropriate  injunctive relief, quash such subpoena or warrant, or otherwise take legal action to protect its interests,  in Gateway Provider’s sole discretion. 

5.2 Payment Gateway’s Obligations 

(a) MERCHANT understands that Payment Gateway will collect, retain, use and share information and  data collected from MERCHANT and MERCHANT’s customers in accordance with Payment  Gateway’s Privacy Policies. MERCHANT hereby consents, as a condition of MERCHANT’s enrollment in and use of the Payment Gateway Services, to the collection, use, processing and  transfer of personal data as described in this Section 5 and Payment Gateway’s Privacy Policies. 

(b) MERCHANT further understands that Payment Gateway may obtain various consumer reports  regarding MERCHANT from third parties, perform a credit check, or otherwise obtain personal or  credit information about MERCHANT in evaluating MERCHANT’s eligibility for, and for the purpose  of providing and administering the Payment Gateway Services.

(c) MERCHANT understands that Payment Gateway may collect and hold personal or non-public  information about MERCHANT and MERCHANT’s customers, including but not limited to:  MERCHANT’s name, address, telephone number, e-mail address, social security number and/or tax  identification number, and payment data as well as MERCHANT’s customers' names, mailing &  shipping addresses, email addresses, phone number, types of purchases and descriptions of purchases  (“Data”) for the purpose of considering MERCHANT’s eligibility for and use of the Payment  Gateway Services. MERCHANT also understands and agrees that Payment Gateway, its subsidiaries,  PARTNERs, Third Party Service Providers, suppliers and/or their agents and/or contractors may  transfer Data among themselves as necessary for the purpose of provisioning and managing the  Payment Gateway Services. MERCHANT further agrees that Payment Gateway may further transfer  Data (i) to and from non-affiliated entities that assist Payment Gateway in providing products and  services that MERCHANT requested; (ii) to and from companies that provide support services to  Payment Gateway; (iii) to and from companies that provide marketing services on behalf of Payment  Gateway; or (iv) where otherwise provided by law. 

(d) Payment Gateway will maintain Payment Card Industry Data Security Standard (PCI DSS)  compliance at all times during the Term of this Agreement. 

(e) MERCHANT further understands that while Payment Gateway uses commercially reasonable efforts  to safeguard Data and Transaction data transmitted by and through the Payment Gateway Services,  Payment Gateway provides no warranty, express or implied, that Data and Transaction data will be  transported without unauthorized interception or modification, or that Data or Transaction data will not  be accessed or compromised by any unauthorized third parties. 

(f) MERCHANT agrees that MERCHANT is solely responsible for compiling and retaining permanent  records of all Data and Transaction data for future reference. Except as otherwise provided herein,  Payment Gateway shall have no obligation to store, retain, report or otherwise provide any copies of  or access to any records of Transactions or other Data collected or processed by Payment Gateway.  MERCHANT acknowledges that Payment Gateway shall have no obligation to provide MERCHANT  with any Data or Transaction data upon termination of this Agreement. MERCHANT agrees that  MERCHANT shall implement industry standard policies and procedures that limit access to Data or  Transaction data. Prior to discarding data or Transaction data MERCHANT shall render all such data  or Transaction data unreadable or encrypted, and abide by all laws or regulations imposed on  MERCHANT pertaining to Data or Transaction data destruction and/or disposal. 

5.3 MERCHANT’s Username and Password 

(a) In connection with MERCHANT’s rights as described herein, Payment Gateway or PARTNER will  issue to MERCHANT, or permit MERCHANT to use, a username and password that enables MERCHANT and/or MERCHANT’s employees and/or agents to access MERCHANT’s gateway  account and use the Payment Gateway Services. MERCHANT shall restrict access to such username,  password, and account to only those of MERCHANT’s employees and/or agents who have  reasonable need for such information. MERCHANT shall ensure that each such employee and/or agent accessing and using the account is aware of and otherwise complies with all applicable  provisions of this Agreement. 

(b) MERCHANT is solely responsible for maintaining adequate security and control of any and all  usernames, passwords, or any other codes that are issued by Payment Gateway or PARTNER to  MERCHANT, or selected by MERCHANT, for the purpose of accessing the Payment Gateway 

Services. Payment Gateway shall be entitled to rely on information it receives from MERCHANT and  may assume that all such information was transmitted by or on behalf of MERCHANT. 

6. INTELLECTUAL PROPERTY AND REVERSE ENGINEERING: 

The parties hereby agree that Payment Gateway owns and retains all right, title and interest in and to the  Payment Gateway Services, Trademarks, copyrights, technology and any and all related technology or  intellectual property utilized under or in connection herewith. No title to or ownership of any of the  foregoing is granted or otherwise transferred to MERCHANT or any other entity or person under this  Agreement. MERCHANT shall not reverse engineer, disassemble, decompile or otherwise attempt to  discover the source code or trade secrets of any of Payment Gateway’s Services or related technology. 

7. TRADEMARKS: 

7.1 Use of Trademarks 

(a) Payment Gateway hereby grants to MERCHANT the right to use, reproduce, publish, perform and  display the Payment Gateway Marks as follows: (a) on MERCHANT’s web site in connection with  MERCHANT’s offering of Payment Gateway Services to its customers; and (b) in promotional and  marketing materials and electronic and printed advertising, publicity, email correspondence, press  releases, newsletters and mailings about or related to any of the Payment Gateway Services. 

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

7.2 Restrictions on Use 

(a) Neither party shall create any derivative mark consisting of one or more Trademarks of each party, or  otherwise use the other party’s Mark(s) as its own property. All uses of the other party's Trademarks  shall inure to the benefit of the party owning such Trademark. Each party to this Agreement hereby  acknowledges and agrees that the other party is the owner of the Trademarks identified such in any  written notice provided to the other party pursuant to this Agreement. Either party may update or change  the list of Trademarks usable by the other party hereunder at any time by written notice to the other  party. 

(b) A party to this Agreement must include a statement of ownership when displaying or reproducing the  trademark(s) of the other. It is sufficient to state: “The trademark is the property of its respective  owner.” 

(c) MERCHANT shall not use (except as expressly provided for by this Agreement), register or attempt to  register any Payment Gateway Trademarks or domain names that are in any manner confusingly similar  to the Trademarks, marks or Domain Name(s) belonging to Payment Gateway. MERCHANT shall not  take any action inconsistent with Payment Gateway’s ownership of its Trademarks, including  registering any confusingly similar Trademarks, or in any way dispute the validity thereof.  MERCHANT shall not use Payment Gateway’s Trademarks in any manner that would suggest that 

MERCHANT is using Payment Gateway Trademarks other than as a licensee, or assist any third party  do the same. 

8. PAYMENT TERMS: 

8.1 ACH Authorization and Payment Due Dates 

(a) Payment Gateway’s fees shall commence on the Effective Date and MERCHANT shall be billed on  the first business day of each month following the Effective Date for any and all amounts due and  owing under this Agreement. If accrued fees owed by MERCHANT exceed $50.00 USD at any time  in any given month, Payment Gateway will bill MERCHANT the full amount due more frequently  than monthly, at Payment Gateway’s discretion. 

(b) MERCHANT must authorize Payment Gateway to initiate transaction entries into MERCHANT’s  depository account via ACH. This authority is to remain in full force and effect until (i) Payment  Gateway has received written request from MERCHANT to terminate this arrangement, which  request must be made with sufficient time to afford Payment Gateway and MERCHANT’s depository  institution a commercially reasonable opportunity to acknowledge and respond to the same, and (ii)  Payment Gateway has collected all fees due and owing under this Agreement. If Payment Gateway is  unable to collect amounts due and owing from MERCHANT’s depository account, MERCHANT  hereby authorizes Payment Gateway to charge MERCHANT’s credit card for any and all amounts  due and owing under this Agreement. Any entry initiated to or from MERCHANT’s depository  account will conform to the rules of the National Automated Clearing House Association (NACHA)  and/or any other regulatory body or agency having jurisdiction over the subject matter hereof. 

(c) MERCHANT must promptly update MERCHANT’s account information with Payment Gateway or  PARTNER with current and accurate information. In the event MERCHANT fails to provide  Payment Gateway or PARTNER with current and accurate depository account and/or credit card  account information, Payment Gateway may immediately discontinue providing Payment Gateway  Services to MERCHANT, without liability, until such information is provided to Payment Gateway,  in which case Payment Gateway may also terminate this Agreement. MERCHANT acknowledges  that any change in account information may not be effective until the month following the month in  which Payment Gateway receives such notice. Termination of MERCHANT’s authorization shall  result in termination of any and all Payment Gateway Services. 

8.2 MERCHANT BILLS FROM PARTNER: 

If MERCHANT is billed by a PARTNER for some or all of the Fees, MERCHANT shall pay PARTNER in the manner agreed upon between MERCHANT and PARTNER. 

9. FEES: 

9.1 Payment Gateway Service Fees 

(a) MERCHANT shall pay Payment Gateway the fees set forth in the Fee Schedule provided to  MERCHANT by Payment Gateway and/or, if applicable, to PARTNER. The Fee Schedule is hereby  incorporated in its entirety into the terms of this Agreement by reference. 

(b) Notwithstanding the foregoing, MERCHANT may continue using the Payment Gateway Services if  MERCHANT’s relationship with the PARTNER that offered MERCHANT the Payment Gateway  Services expires or terminates, and such PARTNER was billing MERCHANT for certain Fees. If 

MERCHANT elect to continue using the Payment Gateway Services, MERCHANT acknowledges  and agre es that Payment Gateway may begin to bill MERCHANT for such Fees in the amounts that  the PARTNER had been charging MERCHANT. Payment Gateway may thereafter amend the Fee  schedule after providing MERCHANT with thirty (30) days notice in accordance with Section 15.3. 

9.2 Other Fees and Charges 

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

(b) For any occurrence in which Payment Gateway is unable to collect fees on MERCHANT’s Account, for any reason, including but not limited to insufficient funds, closed account, or any other negative  response, Payment Gateway may charge MERCHANT a Return Payment Fee in the amount of  $25.00 USD, or such fee as is set forth in the fee schedule. 

(c) If MERCHANT has not paid all amounts due and owing with two (2) days of their due date, Payment  Gateway may, in its sole discretion, discontinue providing MERCHANT with Payment Gateway  Services. If MERCHANT has still not paid all amounts due and owing after thirty (30) days  following the date on which such payments were due, then Payment Gateway may immediately  terminate this Agreement in its sole discretion. Notwithstanding the foregoing, if MERCHANT subsequently pays in full all fees due and owing, including but not limited to late fees, finance  charges and Return Payment Fees, and if Payment Gateway has not already terminated this  Agreement, then Payment Gateway may elect to reactivate the Payment Gateway Services and charge  MERCHANT a Service Reactivation Fee as set forth in the fee schedule. 

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

10. TERMINATION: 

10.1 Termination by Payment Gateway 

(a) Payment Gateway may terminate this Agreement and/or terminate MERCHANT’s use of the Payment  Gateway Services immediately, or at any time, without advance notice, with or without cause, for any  reason, including without limitation in the event MERCHANT breaches or defaults on any obligation  set forth in this Agreement, or if Payment Gateway determines, in its sole discretion, that  MERCHANT’s business practices are detrimental to Payment Gateway’s business objectives. In such  event, Payment Gateway shall provide MERCHANT with a written or electronic notice of termination. 

10.2. Termination by MERCHANT

(a) MERCHANT may terminate this Agreement with or without cause, and for any reason, by providing  Payment Gateway with (30) days written notice of MERCHANT’s intent to terminate this  Agreement. 

(b) In the event MERCHANT is billed by a PARTNER in furtherance of Section 8.2 of this Agreement,  MERCHANT hereby authorizes PARTNER to terminate this Agreement on MERCHANT’s behalf. 

10.3 Termination by PARTNER or Third-Party Service Provider 

(a) In the event MERCHANT is billed by an PARTNER according to Section 8.2, and if Payment  Gateway receives notice from such PARTNER that it has terminated or suspended its relationship  with MERCHANT, Payment Gateway may suspend and/or terminate MERCHANT’s right to use  Payment Gateway Services and/or terminate this Agreement without notice or liability. 

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

10.3 Effect of Termination and Survival 

All rights and interests under this Agreement shall be extinguished upon termination of this Agreement,  which shall be given no further force or effect except that: i) all accrued payment obligations shall survive  such expiration or termination; and (ii) the rights and obligations of the parties under Sections 6, 10, 12, 13,  14 and 15 shall also survive termination. 

11. REPRESENTATIONS AND WARRANTIES: 

11.1 Mutual Representations and Warranties 

Each party represents and warrants to the other that (i) the party's obligations under this Agreement do not  violate any law or breach any other agreement to which either party to this Agreement is bound; (ii) the  undersigned has all necessary rights, powers and abilities to execute this Agreement and to perform its  obligations therein; and (iii) neither party requires any further or third party authorization or approval in  order to fully perform its obligations under this Agreement.  

11.2 MERCHANT’s Representations and Warranties 

(a) MERCHANT represents and warrants that MERCHANT is engaged in a lawful business that includes  the sale of products and/or services, and is duly licensed to conduct such business under the laws of  all jurisdictions in which MERCHANT does business. MERCHANT further represents and warrants that all statements made by MERCHANT in this Agreement, and/or in any other, related document  executed by MERCHANT or on MERCHANT’s behalf, are true, accurate and complete in all  material respects. MERCHANT hereby authorizes Payment Gateway to investigate and confirm the  information submitted by MERCHANT herein. For this purpose, Payment Gateway may utilize credit  bureaus and/or reporting agencies, and/or Payment Gateway’s own agents. 

(b) MERCHANT will comply with all applicable laws, regulations, rules, ordinances and orders.  MERCHANT shall further comply with, without limitation, the Payment Card Industry Data Security  Standard (PCI DSS), the Gramm-Leach-Bliley Act, and such regulations as may apply or be 

promulgated from time to time by the National Automated Clearing House Association (NACHA),  and/or any other regulatory body or agency of competent jurisdiction. 

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

11.3 Payment Gateway’s Representations and Warranties 

(a) Payment Gateway represents and warrants that the Payment Gateway Services provided to  MERCHANT will substantially conform to the specifications set forth in the Payment Gateway  Service Level Agreement (SLA), a copy of which is attached hereto as Appendix B, which SLA may  be amended from time to time at Payment Gateway’s sole discretion. In addition to the exclusions  contained in Appendix B, the SLA will not apply if (i) MERCHANT’s equipment or software creates  a defect or malfunction; (ii) the Payment Gateway Services are used in a manner that in any way  conflicts with this Agreement, or (iii) any of the Payment Gateway Services are modified by any  individual or entity other than Payment Gateway. 

(b) MERCHANT acknowledges that Payment Gateway Services are designed for use with certain third party programs, including, without limitation, certain internet browser software programs.  MERCHANT will look solely to the developers and manufacturers of such programs with respect to  any warranty, maintenance or support regarding the same. Payment Gateway makes no warranty,  express or implied, as to any such third-party software. 

(c) MERCHANT may not rely on any representation or warranty pertaining to Payment Gateway  Services made by any third party in contravention of this Agreement, including the representations or  warranties of any Third-Party Service Provider or PARTNER. In the event of a breach of the  foregoing warranty, Payment Gateway shall use commercially reasonable efforts to repair or replace  the Payment Gateway Services, at its option. MERCHANT acknowledges that Payment Gateway  neither warrants nor guarantees that such efforts will be successful. If Payment Gateway’s efforts are  unsuccessful, MERCHANT may terminate this Agreement in accordance with Section 10.2. THE  FOREGOING SHALL CONSTITUTE MERCHANT’s SOLE REMEDY, AND PAYMENT  GATEWAY’s SOLE LIABILITY, FOR INTERRUPTIONS, OUTAGES OR OTHER DELAYS IN  PAYMENT GATEWAY’S SERVICES AND/OR VALUE-ADDED SERVICES, WHICH VALUE ADDED SERVICES ARE DESCRIBED AND DISCUSSED IN EXHIBIT “C” HERETO. Payment  Gateway neither warrants nor guarantees the services of any third party, including without limitation  Third Party Service Providers, PARTNERs, VARS or the Card Association. 

12. CONFIDENTIALITY AND NONDISCLOSURE: 

12.1 Use of Confidential Information  

Each party that receives information (the “Receiving Party”) from the other party (the “Disclosing Party”)  agrees to use its commercially reasonable, best efforts to protect all non-public information and know-how  of the Disclosing Party that is either designated as proprietary and/or confidential or that, by the nature of  the circumstances surrounding disclosure, reasonably ought to be treated as proprietary and/or confidential  (“Confidential Information”). Each party shall take precautions as to the Confidential Information of the  other at least as great as those taken to protect its own, similar information. Each party agrees that the terms  and conditions of this Agreement will be Confidential Information, however, either party may disclose the  terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary  course of its business.

12.2 Exclusions 

The foregoing restrictions will not apply to any information that: (a) the Receiving Party can document it  had in its possession prior to disclosure by the Disclosing Party; (b) was in or entered the public domain  through no fault of the Receiving Party; (c) is disclosed to the Receiving Party by a third party legally  entitled to make such disclosure without violation of any obligation of confidentiality; (d) is required to be  disclosed by applicable laws or regulations, but in such event, only to the extent required to be disclosed,  and in which case the Disclosing Party shall notify the other of its intention or obligation to make such  disclosures in prior to doing so; or (e) is independently developed by the Receiving Party without reference  to any Confidential Information of the Disclosing Party. Upon request of the other party, or in any event  upon any termination or expiration of the Term, each party shall return to the other all materials, in any  medium, whether physical or electronic, that contain, embody, reflect or reference part or all of the  Confidential Information of the other party. Each party acknowledges that its breach of this provision would  result in irreparable harm to the other party, for which money damages would be an insufficient remedy,  thus for which the other party shall be entitled to seek injunctive relief to enforce the provisions of this  Section 12. 

13. LIMITATION OF LIABILITY: 

13.1 Payment Gateway Disclaimers 

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

(b) PAYMENT GATEWAY EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS, HOWEVER  OCCURRING, INCLUDING NEGLIGENCE, ARISING FROM OR RELATED TO: (I)  MERCHANT’S FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE  MERCHANT’S ACCOUNT(S); (II) FRAUDULENT TRANSACTIONS PROCESSED THROUGH  MERCHANT’S ACCOUNT(S); (III) DISRUPTION OF PAYMENT GATEWAY’S SERVICES,  SYSTEMS, SERVER OR WEB SITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION,  DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, SYBIL ATTACKS, WORMS,  TIME BOMBS, OR ANY OTHER MALWARE, SPYWARE OR OTHER TECHNOLOGY; (IV)  ACTIONS OR OMISSIONS BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION,  A THIRD PARTY SERVICE PROVIDER, PARTNER, OR AQUIRING BANK; OR (V) ANY  UNAUTHORIZED ACCESS TO DATA OR CUSTOMER DATA, INCLUDING BUT NOT  LIMITED TO CREDIT CARD NUMBERS, PERSONALLY IDENTIFIABLE INFORMATION,  TRANSACTION DATA OR OTHER PERSONAL INFORMATION BELONGING TO PAYMENT  GATEWAY, MERCHANT OR ANY THIRD PARTY. 

(c) PAYMENT GATEWAY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY OR LOSS  PERTAINING TO THE LEGITIMACY OF ORDERS FORWARDED FROM MERCHANT, AND  FOR ANY AND ALL CLAIMS OF LOSS AND/OR FRAUD INCURRED THROUGH  ASSSUMPTIONS OR CONCLUSIONS DRAWN FROM THE DATA PROVIDED TO  MERCHANT THROUGH ANY OF PAYMENT GATEWAY’S SERVICES, FROM ANY SYSTEM  OR PROGRAM ASSOCIATED THEREWITH, OR AS THE RESULT OF LIMITATIONS IN THE FUNCTIONING OF ANY PAYMENT GATEWAY SERVICES OR SOFTWARE, HARDWARE, 

OR ASSOCIATED EQUIPMENT, WHETHER OWNED BY PAYMENT GATEWAY OR  OFFERED THROUGH A THIRD PARTY SERVICE PROVIDER OR OTHER ENTITY. 

13.2. Payment Gateway Limitation of Liability 

(a) UNDER NO CIRCUMSTANCES WILL PAYMENT GATEWAY, OR ANY OF ITS PARENT’S OR RELATED PARTIES’ AFFILIATES OR VENDORS, OFFICERS, DIRECTORS,  EMPLOYEES, AGENTS, OR ASSIGNS BE LIABLE FOR ANY INDIRECT, INCIDENTAL,  CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, HOWEVER OR WHENEVER  ARISING, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST  PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS  REPUTATION, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES,  UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT,  INCLUDING NEGLIGENCE, CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER  OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

(b) PAYMENT GATEWAY’S TOTAL LIABILITY TO MERCHANT, WHETHER ARISING IN  TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS  AGREEMENT OR WITH REGARD TO ANY OF PAYMENT GATEWAY’S PRODUCTS OR  SERVICES, SHALL NOT EXCEED THE AGGREGATE COMPENSATION PAYMENT  GATEWAY RECEIVED FOR PROVIDING PAYMENT GATEWAY SERVICES TO  MERCHANT DURING THE THIRTY (30) DAYS PRECEDING THE DATE ON WHICH THE  CLAIM AROSE OR $1,000.00 USD, WHICHEVER IS LESS. 

13.3 Payment Gateway Services “As Is” Disclaimer 

GATEWAY PROVIDER SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS  WITHOUT ANY REPRESENTATIONS OR WARRANTIES. GATEWAY PROVIDER DOES NOT  REPRESENT OR WARRANT THAT THE GATEWAY PROVIDER SERVICES WILL BE  AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE,  OR ERROR FREE. MERCHANT MAY NOT RELY UPON ANY REPRESENTATION OR  WARRANTY REGARDING THE GATEWAY PROVIDER SERVICES MADE BY ANY THIRD  PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING, BUT NOT  LIMITED TO REPRESENTATIONS BY THIRD PARTY SERVICE PROVIDERS OR PARTNERS,  EXCEPT AS SET FORTH IN THE SERVICE LEVEL AGREEMENT CONTAINED IN APPENDIX B  OF THIS AGREEMENT. MERCHANT UNDERSTANDS AND AGREES THAT GATEWAY  PROVIDER SHALL BEAR NO RISK WHATSOEVER AS TO THE SALE OF PRODUCTS OR  SERVICES, INCLUDING WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT  CARD FRAUD, ACH FRAUD, CHECK FRAUD OR CHARGEBACKS. GATEWAY PROVIDER  SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND  CONDITIONS, WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF  LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT  LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A  PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE GATEWAY  PROVIDER SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS  AGREEMENT. MERCHANT UNDERSTANDS AND AGREES THAT PAYMENT GATEWAY  SHALL BEAR NO RISK WITH RESPECT TO MERCHANT’S SALE OF PRODUCTS OR SERVICES,  INCLUDING WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD,  ACH FRAUD, CHECK FRAUD OR CHARGEBACKS. 

13.4 Disputes

The parties shall promptly investigate any disputes under this Agreement. If the disputed amount is less  than five percent (5%) of the total fees invoiced by Payment Gateway for the relevant billing statement, the  total amount invoiced shall be due and payable on or before the due date. If the disputed amount is greater  than five percent (5%) of the total fees invoiced by Payment Gateway for the relevant billing statement,  such amount may be withheld until the dispute is resolved. All disputes must be made in good faith, in  writing, within thirty (30) days of the billing statement date. Fees billed shall be deemed accepted and non refundable in the absence of such dispute. 

14. INDEMNIFICATION: 

14.1 MERCHANT Indemnification 

MERCHANT shall defend, indemnify, and hold Payment Gateway and its PARTNERs, Third Party Service  Providers, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, harmless  from and against any and all claims, actions, proceedings, and suits, and all related liabilities, damages,  settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation  expenses) incurred by Payment Gateway, arising out of or relating to (a) any breach or alleged breach by  MERCHANT of any representation, warranty, or obligation of MERCHANT set forth in this  Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by  MERCHANT or any of MERCHANT’s agents, employees or customers; (c) payment card transactions  submitted to Payment Gateway by MERCHANT and rejected by Payment Gateway or an issuing bank;  (d) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by MERCHANT  to Payment Gateway; (f) claims by MERCHANT’s customers, including, without limitation, claims  relating to the disclosure of consumer data; (f) any alleged infringement of a patent, copyright, trademark  or other intellectual property right resulting from any act or omission on the part of MERCHANT; (g) any  violation of Payment Gateway’s then current policies or guidelines; or (h) any alleged or actual violation  by MERCHANT of any applicable laws, regulations or rules of (i) the Credit Card Associations; (ii) the  Gramm Leach Bliley Act; (iii) or any regulatory body or agency having jurisdiction over the subject matter  hereof. In the event MERCHANT causes fines and/or penalties to be charged to Payment Gateway by the  Credit Card Associations or any other entity, MERCHANT agrees to reimburse Payment Gateway  immediately for said fines and penalties. 

14.2 Payment Gateway Indemnification 

(a) Payment Gateway shall defend, indemnify and hold MERCHANT and MERCHANT’s officers,  directors, agents or employees harmless from and against any and all third party claims, actions,  proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or  expenses (including reasonable attorneys' fees and other litigation expenses) incurred by  MERCHANT, arising out of or relating to any alleged infringement of a U.S. patent of any other  entity or person by Payment Gateway. 

(b) Payment Gateway’s obligations in Section 14.2(a) do not apply if Payment Gateway’s Services are,  in whole or in part, (a) modified by persons or entities other than Payment Gateway, if the alleged  infringement relates to such modification; (b) combined with other products, services, processes or  materials not supplied or recommended by Payment Gateway, where the alleged infringement relates  to such combination, or (c) used after Payment Gateway has made a non-infringing version available  to MERCHANT (collectively, “MERCHANT Faults”). If Payment Gateway’s Services or any  component thereof becomes, or in Payment Gateway’s opinion is likely to become, the subject of a  claim of infringement, then MERCHANT shall allow Payment Gateway, at Payment Gateway’s sole  option and expense, either to (i) procure for MERCHANT the right to continue using the Payment  Gateway Services as provided for in this Agreement, or (ii) replace or modify the affected Payment 

Gateway Services or infringing component so that it becomes non-infringing. If, after using  commercially reasonable efforts, Payment Gateway is unable to cure the infringement, either party  may terminate this Agreement upon written notice to the other, as provided in Section 10.  Notwithstanding the above, Payment Gateway’s total liability shall not exceed the amounts described in Section 13.2(b). THIS SECTION 14.2(b) PROVIDES THE ENTIRE LIABILITY OF PAYMENT  GATEWAY TO MERCHANT WITH RESPECT TO ANY INFRINGEMENT OF ANY  INTELLECTUAL PROPERTY RIGHTS BY PAYMENT GATEWAY SERVICES. 

14.3 Indemnification Process 

The obligations of each party (“Indemnitor”) under this Section 14.3 to defend, indemnify and hold  harmless the other party (“Indemnitee”) shall be subject to the following: (a) Indemnitee shall provide  Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any  failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this section to  the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely  affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of  such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any  such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses  incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnitee  may participate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without  the consent of the Indemnitee, enter into any settlement that reasonably could be expected to require a  material affirmative obligation of liability, result in any ongoing material liability to or materially prejudice  Indemnitee in any way. 

14.4. Exceptions 

If MERCHANT is an agency or instrumentality of any state within the United States, and is precluded by  the law of that state from entering into indemnification obligations, then the obligations under this Section  14 shall apply only to the extent permitted by such state’s law. 

15. GENERAL PROVISIONS: 

15.1 Non-exclusivity 

This Agreement shall not confer on either party any exclusive rights. Each party is free to contract with  others, subject to the terms of this Agreement. 

15.2 Relationship of the Parties 

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

15.3 Notices 

All notices to MERCHANT shall be sent electronically to the email address posted in the MERCHANT’s  Gateway Provider account. All notices to Gateway Provider shall be sent to Support@justpresspay.com 

15.4 Non-solicitation 

MERCHANT shall not directly or indirectly, whether for compensation or otherwise, engage in any  business activity, whether as an employee, proprietor, officer, director, agent, trustee, MERCHANT or  creditor lending money for the purpose of establishing or operating any such business, that (a) induces or  attempts to induce, directly or indirectly, any third party to modify or terminate such party’s business  association with Gateway Provider or (b) interferes with, disrupts or attempts to disrupt any business  relationship, contractual or otherwise, between Gateway Provider and any third party, client, supplier,  consultant, agent or employee of Gateway Provider. The parties hereto acknowledge that any breach of  these non-solicitation provisions will cause immediate, irreparable and continuing harm to Gateway  Provider for which there is no adequate remedy at law, and as such the parties acknowledge and agree that  in the event of any breach or violation, or threatened breach or violation, of these non-solicitation  provisions, Gateway Provider and/or its successors and/or assigns shall be entitled to temporary,  preliminary and permanent injunctive relief, including restraints enjoining and restraining such breach or  violation or threatened breach or violation, plus such other legal and equitable remedies as may be provided  by law, without the necessity of posting any bond or other security, including damages, for the costs of suit  or attorneys’ fees. 

15.5 Severability, Headings 

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

15.6 Dispute Resolution 

Any dispute or claim arising out of or relating to this Agreement, except claims involving intellectual  property and claims for indemnification, will be resolved by binding arbitration. The arbitration of any  dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”)  rules, as modified by this Agreement, which shall take place in Chicago, Illinois, unless the Parties mutually  agree otherwise. This Agreement evidences a transaction in interstate commerce and this arbitration  provision shall be interpreted and enforced in accordance with the Federal Arbitration Act and federal  arbitration law. An arbitrator may not award relief in excess of or contrary to what this Agreement provides,  or order consolidation or arbitration on a class wide or representative basis, except that the arbitrator may  award damages required by statute on an individual basis and may order injunctive or declaratory relief  pursuant to an applicable consumer protection statute. Any arbitration determination or award shall be  confidential, and neither Party may disclose the existence, content or results of any arbitration, except as  may be required by law or for purposes of enforcement of the same. Judgment on any arbitration award  may be entered in any court having proper jurisdiction. All administrative fees and expenses will be divided  equally between the Parties, though each Party will bear its own expense of counsel, experts, witnesses and  preparation and presentation of evidence at the arbitration. IF FOR ANY REASON THIS ARBITRATION  CLAUSE IS DEEMED INAPPLICABLE OR INVALID, THE PARTIES WAIVE, TO THE FULLEST  EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE ANY CLAIMS ON A CLASS OR  CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. No action, regardless of form,  arising out of or in conjunction with the subject matter of this Agreement, except for claims involving  intellectual property and claims for indemnification, may be brought by either Party more than one (1) year  after the cause of action arose.

15.7 Amendment 

With written notice to MERCHANT, Gateway Provider may modify any of the terms and conditions  contained in this Agreement at any time in its sole discretion. MERCHANT acknowledges and agrees the  transaction processing and gateway services industries evolve and change over time, and therefore agrees  that Gateway Provider may so modify this Agreement, from time to time, to comply with any additional  rules or policies that may be required under the laws of the United States or any other governing body, or  to adjust to changing business circumstances. Gateway Provider will post the most current version of this  Agreement, including any amendments or modifications thereto, via the MERCHANT Control Panel on  Gateway Provider’s Website, which version shall automatically become effective thirty (30) days after the  date it is posted. MERCHANT may terminate the Agreement at any time by providing Gateway Provider  with written notice within thirty (30) days after Gateway Provider posts an amendment or modification to  this Agreement if MERCHANT deems such amendment or modification to be unacceptable.  MERCHANT's continued participation following a modification or amendment shall constitute  MERCHANT's binding acceptance of the change. No provision of this Agreement shall be modified by  MERCHANT except by means of a written document signed by Gateway Provider. 

15.8 Electronic Signatures 

Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all  electronically executed documents related hereto are legally binding in the same manner as are hard copy  documents executed by hand signature when (1) a party’s electronic signature (which may be evidenced by  MERCHANT clicking the “Submit,” “Accept” or other equivalent indicator on the applicable website) is  associated with this Agreement and related documents, (2) MERCHANT consents and intends to be bound  by this Agreement and related documents, and/or (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record).  This Agreement and all related electronic documents shall be governed by the provisions of E-Sign. By  pressing Submit, Accept or other equivalent indicator, such person or party agrees (i) that this Agreement  and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions  of this Agreement and related documents, (iii) that said person or party has the ability to print or otherwise  store the Agreement and related documents. 

15.9 Governing Law, Jurisdiction, Conflicts of Law, Forum 

This Agreement and performance thereof shall be interpreted, construed and enforced in all respects in  accordance with the laws of the State of New York. MERCHANT hereby irrevocably consents to the personal  jurisdiction of and venue in the state and federal courts located in Nassau County, New York with respect to  any action, claim or proceeding arising out of or related to this Agreement and agrees not to commence or  prosecute any such action, claim or proceeding other than in such courts. The parties hereto agree that  New York law shall apply regardless of any choice or conflicts of law principles. The parties further agree  that Nassau County, New York is a convenient forum, and waives any objection to the same under forum non  conveniens principles. 

15.10 Waiver   

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

15.11 Assignment 

MERCHANT may not assign this Agreement or any rights hereunder without the prior written consent of  Gateway Provider, except that Gateway Provider’s prior written consent will not be required for an  assignment as the result of any MERCHANT merger, consolidation, reorganization or similar transaction  involving all or substantially all of the assets of MERCHANT. In any such event, the assignee must assume  and agree in writing to perform all of the assigning party's executory obligations. The assigning party must  further guarantee performance by the assignee throughout the Term of this Agreement. Subject to the  foregoing, this Agreement shall be binding upon, enforceable by, and inure to the benefit of the parties and  their respective successors and assigns. 

15.12 Force Majeure 

Gateway Provider shall not be responsible for any failure to perform beyond its reasonable control,  including, without limitation acts of God, acts or omissions of civil or military authority, civil disturbances,  wars, strikes or other labor disputes, fires, transportation contingencies, or interruptions in  telecommunications or internet services, third party vendors or network provider services. 

15.13 Merger  

This Agreement, constitutes the entire agreement between the parties and supersedes all prior memoranda  or agreements relating thereto, whether oral or in writing.

Appendix A - Prohibited Activities 

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

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

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

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

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

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

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

(7) impersonates any person or entity; 

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

(9) is associated with any illegal form of adult, sexually oriented, or obscene materials or services, including  without limitation, any material associated with, linked to or containing images of children less than 18  years old and/or escort services; 

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

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

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

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

Appendix B - PAYMENT GATEWAY SERVICE LEVEL AGREEMENT 

This Service Level Agreement (“SLA Agreement”) sets forth the SLA applicable to the various  Payment Gateway Services ordered by MERCHANT and provided by Payment Gateway. This SLA  provides MERCHANT’s sole and exclusive remedies for any Service interruptions, deficiencies, or failures  of any kind. If such remedies include service credits, the parties agree that such credits constitute liquidated  damages. No otherwise applicable SLA, including any remedies hereunder, shall apply with respect to any  Excluded Events. 

The following Service Level Targets apply to the Services. ‍

AVAILABILITY SERVICE LEVEL TARGET 

For transaction processing services, this SLA provides that the Payment Gateway Application will  have 99.5% uptime (averaged over the calendar month). MERCHANT will be eligible for service credits  as set forth in the following table if this Availability Target is not met due to Outages. 

Definitions 

“MRFC” Monthly Recurring Fixed Charge means any and all fees MERCHANT is obligated to pay to  Payment Gateway, including MERCHANT’S monthly charge and fixed Service charges. 

“Affected Service” means only that portion of a Service that is actually impacted by the relevant Service  Level Target. 

“Availability” means the percentage of time during a month in which the Payment Gateway application is  not subject to an Outage. 

“Billing Commencement Date” means the first day of MERCHANT’s monthly billing cycle for any  Gateway Provider Service. 

“Outage” means any period of at least one minute during which the Payment Gateway Application is  completely unavailable or inaccessible for reasons other than an Excluded Event. An Outage begins when 

Payment Gateway opens the relevant support ticket and ends at the earlier of the restoration of the Affected  Service or when the ticket is closed. All Outage measurements will be rounded to the nearest one-minute increment. 

“Payment Gateway Application” means the components owned and operated by Payment Gateway  excluding any components that are not owned and operated directly by Payment Gateway. 

“Excluded Events” means any event that adversely impacts the Service that is caused by (a) the failure or  malfunction of equipment, applications or systems not owned or controlled by Payment Gateway; (b) the  acts or omissions of MERCHANT, MERCHANT’s employees, customers, contractors or agents; (c) Force  Majeure events; (d) any suspension of Service pursuant to the Merchant Service Agreement; (e) scheduled  maintenance, alteration or implementation; or (f) the unavailability of MERCHANT’s required personnel,  including as a result of failure to provide Payment Gateway with accurate, current contact information. 

Process 

MERCHANT must request any credit due hereunder within 30 days of the conclusion of the month in which  it accrues. MERCHANT herby waives any right to credits not requested within this 30 day period. Credits  will be issued once confirmed by Payment Gateway and applied toward the invoice which MERCHANT will receive no later than two months following MERCHANT’s credit request. All performance  calculations and applicable service credits are based on Payment Gateway’s records and data. 

Limitations 

This SLA does not apply to any Excluded Events, as defined in this SLA. MERCHANT will not be eligible  to accrue any otherwise applicable service credits: (a) before the start of the first full calendar month  following the Billing Commencement Date for the Affected Service, or (b) during any period in which  MERCHANT is in violation of the Payment Gateway Merchant Service Agreement or is past due on any  amounts owed for Payment Gateway Services. MERCHANT may not carry over any service credits subject  to the limits or exclusions of this SLA to subsequent months. 

In no event will the credits accrued in a single month exceed, in the aggregate, across all service levels and  events, thirty percent (30%) of the invoice amount for the Affected Service. 

MERCHANT acknowledges that Payment Gateway manages its throughput in part on the basis of  MERCHANT’s utilization of Service and that changes in its utilization may impact Payment Gateway’s  ability to manage throughput. Therefore, notwithstanding anything else to the contrary, if MERCHANT significantly changes MERCHANT’s utilization of the Service and such change creates a material and  adverse impact on the volume through the Payment Gateway Application, as determined by Payment  Gateway, Payment Gateway may either modify the applicable charges or terminate the Affected Services.

Appendix C - VALUE-ADDED SERVICES 

In the event MERCHANT enrolls in, and Payment Gateway provides MERCHANT with, Value-Added  Service(s), MERCHANT agrees as follows: 

1. Expansion of Services 

The terms “Services” and “Payment Gateway Services,” as each is defined in the Agreement, shall include  the Value-Added Services. Each Value-Added Service is or will be described on the Payment Gateway  Web site and/or in other Services Documentation provided to MERCHANT from time to time. All terms  of the Agreement applicable to the Payment Gateway Services shall be applicable to each Value-Added  Service. 

2. MERCHANT’S Obligations 

In addition to MERCHANT’s obligations set forth in this Agreement, MERCHANT hereby agrees to pay  the Value-Added Service Fees, in accordance with this Agreement, in the amounts provided for in the Fee  Schedule provided to MERCHANT by Payment Gateway and/or, if applicable, PARTNER. The Fee  Schedule is hereby incorporated into the terms of this Agreement by reference and/or in the Value-Added  Service documentation page accessed during enrollment in the applicable Value-Added Service. By  checking the “I ACCEPT” button next to a Value-Added Service Fee schedule, MERCHANT acknowledge  MERCHANT acceptance of such fees, MERCHANT’s obligation to pay same and the terms and conditions  applicable to the Value-Added Service. 

3. MERCHANT’s Warranty 

MERCHANT represents, warrants, and covenants to Payment Gateway that MERCHANT’s use of the  Value-Added Services and any information gathered by MERCHANT in connection with use of a Value Added Service: (a) will be fully compliant with all applicable local, state and federal laws, rules, and  regulations; (b) will be in accordance with all applicable Services Documentation; and (c) will not be used  for any purpose other than in connection with the Value-Added Service. 

4. Acknowledgement 

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

5. LIMITATIONS AND DISCLAIMER

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

6. Risk, Security and Disclosure 

The risk and security suggestions provided to MERCHANT in the Services Documentation for any of the  Value-Added Services are solely for illustrative purposes to show best industry practices. MERCHANT shall be solely responsible for choosing the appropriate settings and parameters for MERCHANT account. 

7. Termination 

If MERCHANT Agreement is terminated for any reason, Payment Gateway shall immediately cancel  access to MERCHANT’s Value-Added Service account. It is MERCHANT’s responsibility to download  all reports prior to the effective date of any such termination since such reports will not be available  following the termination date. 

8. Incorporation by Reference 

The Value-Added Services Fee Schedules are incorporated herein by reference. 

9. Third Party Applications 

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

10. Definitions 

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