Merchant Agreement

1. The Services.
   1. Merchant is in the business of selling goods or providing services to its customers and JustiFi, in partnership with Bank (i) provides certain payment services in order for Merchant to accept Card transactions; (ii) Bank conducts Settlement for Merchant transactions processed hereunder; (iii) provides either itself or through third party merchant service providers and/or processors provides processing services and other services described in this Agreement; and (iv) provides certain payment processing services, including authorization, processing, and settlement services and gateway and network services for Card transactions, as further set forth herein (the “Payment Processing Services” or “Services”). To receive this Payment Processing Services, Merchant must agree to this Agreement and must be approved by JustiFi.
   2. Merchant engages JustiFi and Bank to provide the Payment Processing Services, including electronic funds transfer, authorization, processing, and settlement services and gateway and network services for card transactions and other electronic funds transfers (“Transactions“). The Payment Processing Services include routing and processing transactions for clearing and settlement through electronic funds transfers network(s) (“Payment Networks“) owned or licensed by VISA, MasterCard, Discover, American Express and/or any other payment network. Merchant authorizes JustiFi to submit Transactions to and receive settlement from each Payment Network on behalf of Merchant. Bank is a third-party beneficiary to this Agreement and may exercise any of its or JustiFi’s rights hereunder.
   3. JustiFi and Bank shall follow procedures and time schedules it deems appropriate to timely perform the Payment Processing Services. JustiFi may establish, modify, or substitute equipment, processing priorities, programs, or procedures as reasonably necessary to accommodate processing demand for the System.
   4. Merchant will provide JustiFi any and all data, instructions, and materials (“Merchant Materials“) from time to time during the term of this Agreement as is required for JustiFi to perform the Payment Processing Services. Merchant will be solely responsible for creating, managing, reviewing, and otherwise controlling Merchant Materials shall be responsible for complying with any and all Applicable Laws applicable to the use, and the method and manner of disclosure thereof. Merchant agrees that JustiFi may store, disclose, and use the Merchant Materials provided to JustiFi by Merchant under this Agreement to the extent and only in such manner that such storage, disclosure, and use shall be for purposes of performing the obligations of JustiFi under this Agreement or for purposes permitted under federal, state, or local statutes, regulations.
   5. From time to time, JustiFi and Bank may make or offer ACH services to Merchant subject to the terms of Attachment 1 and compliance with Operating Rules and Operating Guidelines of NACHA and any other guidance or rules issued by National Automated Clearing House Association (“NACHA”) from time to time (“NACHA Rules”) and any other rules or requirements provided to Merchant by JustiFi or Bank from time to time.
   6. From time to time, JustiFi may lease certain Equipment to you, subject to the terms of Attachment 2.
2. Compliance with Applicable Law and Operating Regulations. Merchant shall comply with Applicable Law and the Operating Regulations, as amended from time to time.
3. Electronic Payments Services.
   1. Merchant consents to JustiFi and Bank collecting and disclosing Transaction Data, Merchant data, and other information about Merchant to Bank and the Payment Networks. Merchant consents to Bank and the Payment Networks using such information to perform their responsibilities in connection with this Agreement, promote the Payment Networks, perform analytics and create reports, and for any other lawful business purposes including commercial marketing communication purposes and important transactional or relationship communications from the Payment Networks. If Merchant desires to opt-out of marketing messages, Merchant shall notify JustiFi of its intent to opt-out. Opting out of marketing messages will not preclude Merchant from receiving important transactional or relationship communications from a Payment Network, Bank, and JustiFi.
      1. Sub-merchant bears primary financial responsibility for sub-merchant Transactions, disputes, chargebacks and any liability, fines, penalties or losses related to Transactions, whether incurred by JustiFi or Bank (collectively, “Transaction Losses”) and Merchant bears ultimate financial responsibility for Transaction Losses. JustiFi may hold Merchant responsible for Transaction Losses, but it will first request payment from sub-merchant (request may be made through any communication means, including electronic mail). Thereafter, Merchant is responsible, and shall reimburse JustiFi and Bank, for all Transaction Losses. Except as specifically set forth in this subsection, JustiFi has no collections or demand obligation with respect to sub-merchant before requiring Merchant to reimburse or pay JustiFi or Bank for any Transaction Loss
4. Card Acceptance Procedures.
   1. Visa Chargeback Auto Acceptance Response Service. To the extent JustiFi and Bank make available to Merchant the Visa Chargeback Auto Acceptance Response Service, Merchant agrees to comply with Schedule B.
   2. Card Not Present.
      1. CNP Transactions. Upon prior written approval by JustiFi, Merchant may accept Card Not Present (“CNP”) transactions. JustiFi reserves the right to terminate CNP transactions in the event that there is any change to Merchant’s business, including any material change in the customers, products, management, or employees of the business. If at any time the volume of CNP transactions substantially exceeds the projected annual volume stated on the Merchant’s application, or if at any time JustiFi or Bank suspect fraud, money laundering, or violations of any laws, regulations, rules, or industry standards, JustiFi and Bank may, in its sole and absolute discretion and in addition to other remedies that JustiFi and Bank may have: (i) refuse to process the excessive or suspect CNP transactions; (ii) process the CNP transactions and retain the funds received from processing until such time as the excess or suspect charges are found to be valid or invalid and processed in accordance with Applicable Laws, regulations, rules, and industry standards; (iii) suspend the CNP transactions; (iv) terminate or amend this Agreement.
      2. Timing of Charges. You may not submit a Card charge to Bank until you have shipped the goods or delivered the services that were purchased. There are some situations in which Payment Network Rules allow advance payments. Please contact PF Supplier if you have questions.
      3. Procedures. Merchant understands and agrees that CNP Transactions: (A) do not require the Cardholder’s signature on the Sales Draft or sales slip (with the exception of authorizations for Recurring Transaction, which will be authorized by the Cardholder electronically); (B) require the Merchant to obtain the valid Expiration Date for each Card used for a CNP Transaction; and (C) require the Expiration Date of the Card be submitted as part of the Authorization process.
      4. Authorizations. Merchant understands that Authorizations for CNP Transactions are subject to Chargeback and such Authorizations do not guarantee the validity or collectability of the Card Transaction. Merchant agrees to take reasonable additional steps to verify the identity of the authorized Cardholder on these types of transactions, especially when merchandise is shipped to a third party. Merchant acknowledges and agrees that the receipt of an Authorization code indicating approval does not guarantee that the CNP Transaction will not be subject to a Chargeback. Merchant is encouraged to use (when not prohibited under Applicable Law) fraud reduction systems offered by the Card Networks, such as AVS and CVV2/CVC2 in CNP Transactions.
      5. Document Retrievals. In order to satisfy a Retrieval Request for CNP Transactions, the following Transaction receipt information must be provided by Merchant: (A) the Cardholder Account number, (B) the Card expiration date, (C) the Cardholder name, (D) the Transaction date, (E) the Transaction amount, (F) the Authorization code, (G) the Merchant’s name, (H) the Merchant’s location, (I) a description of the goods or services, (J) the “ship to” address, and (K) the AVS response code (if AVS was used), unless other requirements are specified in Payment Network Rules.
      6. Card Transaction Rules. If Bank authorizes Merchant to accept Electronic Commerce Transactions, you agree to comply with all the provisions of the Operating Regulations pertaining to Electronic Commerce Transactions and the following requirements:
         1. You shall at all times maintain a secure site for the transmission of data relating to the processing of Electronic Commerce Transactions. You shall be responsible for ensuring, obtaining and maintaining site security, for the encryption of all data, and for any and all storage of data both in electronic and physical form.
         2. You must identify each Electronic Commerce Transaction as such when submitted by using the appropriate Electronic Commerce Transaction indicator values specified by the Payment Networks.
         3. You may not submit a request for Authorization for an Electronic Commerce Transaction that has failed a 3-D Secure Authentication Request, if you are using 3-D Secure Authentication.
         4. You shall display on your web site in a prominent manner: (a) the address of the Merchant’s Principal Place of Business, including Merchant’s country of domicile, located on the same screen view as the checkout screen used to present the total purchase amount, or within the sequence of web pages the Cardholder accesses during the checkout process; (b) a complete and accurate description of the goods or services offered; (c) your merchandise return and refund policy clearly displayed on the checkout screen or on the sequence of web pages before final checkout; (d) your consumer data privacy policy and the method of transaction security used to secure cardholder account data during the ordering and payment process; (e) a customer service contact, including electronic mail address or telephone number; (f) Transaction currency; (g) export restrictions (if known); and (h) your delivery/fulfillment policy.
         5. You shall provide Cardholders a secure transaction method, such as Secure Socket Layer or 3-D Secure.
         6. Each website operated by or for you must display the Marks of the Payment Networks for the Card types which are accepted by the Merchant, as specified in the Payment Network Rules. You may only accept the Card types specified in your Merchant Application and approved by Bank. If you accept a different Card type, Bank may process the resulting Transaction subject to its standard terms for acceptance of such Card type, but Bank will not be required to process additional Card type Transactions. You must discontinue accepting such other Card types unless we and Bank agree in writing to modify this Agreement.
         7. You agree to include, in addition to the other data required under the Operating Regulations the following data on a Transaction receipt completed for an Electronic Commerce Transaction: (a) Your Merchant name most recognizable to the cardholder, such as: Merchant’s “doing business as” name or Merchant’s “universal resource locator” (URL), or Merchant name used in the Clearing Record; (b) Merchant service contact information including telephone country code and area code (If you deliver goods or services internationally, Merchant must list both local and internationally accessible telephone numbers); (c) Terms and conditions of sale, if restricted; (d) The exact date any free trial period ends, if offered; (e) Cancellation policies; (f) Merchant’s online address; and (g) A unique transaction identification number. For receipts completed by internet payment service providers, see additional requirements set forth in the Payment Network Rules.
         8. You will provide a completed copy of the Transaction record to the Cardholder at the time the purchased goods are delivered or services performed. You may deliver the Transaction receipt in either of the following formats: (a) electronic (e.g., e-mail or fax), or (b) paper (e.g., hand-written or terminal-generated). You shall not transmit the Cardholder Account number or card expiration date to the Cardholder over the Internet or on the Transaction receipt. You must include the Payment Network Mark and the last 4 digits of the Card used for the Transaction. You must not store a card verification value or similar security code subsequent to authorization.
         9. You may not store Card Account Numbers or other credentials for future use without the approval of PF. If approval is granted, you must follow procedures for collecting, storage and use of the Card credentials as required by Payment Network Rules, by Bank and PF, including obtaining the Cardholders Agreement to such storage and future use in the form and including content as prescribed by Payment Network Rules and disclosure of applicable return and refund policies.
   3. Authorization. Merchant will submit to JustiFi a Transaction only if the Transaction is made or approved by the Cardholder who is issued the Card used in the Transaction. Merchant will obtain Authorization for the total amount of the Transaction, including the tip and tax, if appliable, and shall record the positive Authorization code on the Sales Draft prior to completing the Transaction. Such Authorization must be obtained for every Transaction on the transaction date and prior to completing the Transaction, unless otherwise specified in the Operating Regulations. If Merchant completes a Transaction without Authorization, Merchant will be responsible for any Chargeback of the Transaction and this Agreement shall be subject to immediate termination without notice.
   4. Declines or Illegal Transactions. Merchant shall not submit a Card Transaction for processing that (i) has received a decline response unless the Card Transaction receives a subsequent approval in accordance with Operating Regulations or (ii) Merchant knows or should have known is illegal in either the Merchant’s jurisdiction or the Cardholder’s jurisdiction.
   5. Recovery of Cards. Merchant shall use its best efforts, by reasonable and peaceful means, to retain or recover any Card (i) if Merchant is advised by the Processor to retain it, (ii) if Merchant has reasonable grounds to believe such Card is counterfeit, fraudulent, or stolen, or (iii) if the Card’s embossed account number, indent printed account number, and/or encoded account number do not match, or an unexpired Card does not have the appropriate hologram on the Card face. The obligation of Merchant to retain or recover a Card imposed by this section does not authorize a breach of the peace or any injury to persons or property, and Merchant will hold JustiFi and its licensors harmless from any claim arising from any injury to person or property or other breach of the peace.
   6. Transaction Records. Merchant shall record each Card Transaction and Credit Voucher by following procedures in a format and manner specified by JustiFi and using records such as Sales Drafts, sales slips, or electronic processing records and methods, as directed by JustiFi. Merchant will complete each sale as a single Transaction, except as approved by JustiFi and Bank in writing. Merchant will deliver to the Cardholder an accurate and complete copy of the Transaction, no later than the time of delivery of the goods or performance of the services, using a format approved by the Payment Networks. Merchant must provide on the Cardholder’s copy of the Transaction the truncated Card account number (last four digits only) of the Cardholder. Merchant must not request a card verification value or similar security code from the Cardholder for a card-present Transaction.
   7. Returns; Price Adjustments and Credit Vouchers.
      1. Returns Policy. Merchant may limit returned merchandise or limit price adjustments, to the same extent as for sales not involving a Card, provided Merchant properly discloses its policy to the Cardholder before the sale, the limits are properly disclosed on the Sales Draft before the Cardholder signs in, and the purchased goods or services are delivered to the Cardholder at the time the Card Transaction takes place. Proper disclosure means the words such as “NO REFUND,” “EXCHANGE ONLY,” or “IN STORE CREDIT ONLY” (or the applicable policy) are printed in large letters near the signature line on all copies of the Sales Draft prior to obtaining the Cardholder’s signature on the Sales Draft. Merchant shall submit any changes to its return policy to JustiFi in writing at least thirty (30) days before the change and Merchant will not implement any change to which JustiFi objects. JustiFi may retain a copy of the request, including the new return policy, and the old return policy. Merchant’s policies will not override the Operating Regulations and will not prevent Chargebacks to Merchant under Operating Regulations.
      2. No Refunds in Cash. Merchant shall not make refunds or adjustments for a Card Transaction in cash (except when required by Applicable Law), but will submit to JustiFi a Credit Voucher for a refund or Adjustment to the Cardholder Account within three (3) Business Days of the refund or Adjustment and deliver to the Cardholder a copy of the Credit Voucher at the time the refund or Adjustment is made. The Credit Voucher must include the refund date and amount and a brief description of the refund or Adjustment in sufficient detail to identify the Card used and original Charge. The amount of the Credit Voucher must not exceed the amount of the original except for any amount which Merchant agrees to reimburse the Cardholder for return postage. Merchant may not deliver a Credit Voucher to JustiFi for any refund or Adjustment of a purchase not originating as a Transaction with the same Cardholder requesting the refund or Adjustment, a Transaction not made with Merchant, or a Transaction not originally processed by JustiFi. Merchant will not complete a Credit Voucher for a Card issued to it or its principals or employees except for a valid refund of a Transaction originating with Merchant. Merchant may not receive money from a Cardholder and subsequently deliver to JustiFi a Credit Voucher to make a deposit to the account of the Cardholder. JustiFi may delay processing Credit Vouchers on any day to the extent they exceed the total of valid Charges presented on that day and the balance in the Custodial Account available to cover the Credit Vouchers, until the sum of valid Charges and the balance in the Custodial Account is sufficient to cover the Credit Vouchers.
      3. Post-termination Credits. After this Agreement terminates, JustiFi is not obligated to process any Credit Voucher that Merchant submits. All Chargebacks related to Credit Vouchers will be Merchant’s responsibility.
   8. Prepayments. Merchant may deposit a Card Transaction for prepayment if it advises the Cardholder of the immediate billing at the time of the Transaction, for: (i) prepayment of services, excluding estimates for services to be provided and (ii) full payment of custom ordered merchandise, manufactured to the Cardholder’s specifications.
   9. Merchant Locations. Merchant shall promptly provide JustiFi with the current address of each o its offices and locations. Merchant shall permit JustiFi and/or its licensors to: (i) identify the location of each Card Transaction on the Sales Draft; and (ii) include this identification in the clearing record submitted to JustiFi.
   10. Document Requests. Merchant shall respond to all Transaction Documentation Requests (Retrieval Requests) within the timeframes specified in the applicable Operating Regulations. If Merchant does not respond to a Transaction Documentation Request or the response is late or incomplete, Merchant shall be subject to Chargeback of the Transaction even if otherwise valid.
   11. Intellectual Property Rights.
       1. Display of Card Brands. Merchant shall display Visa, Mastercard, Discover Network, and American Express, if applicable, other Payment Network decals, Marks, and advertising and promotional materials in compliance with the Operating Regulations. Merchant shall only display Visa, Mastercard, Discover Network, or American Express approved decals, Marks and advertising and promotional materials for the Card type(s) that Merchant selected on the Application as approved by JustiFi. Merchant is prohibited from using each Payment Network’s Marks other than as expressly authorized in writing by JustiFi. Merchant shall not use the Payment Network Marks other than to display decals, signage, advertising and other forms depicting the Payment Network Marks in the forms that are provided to Merchant by JustiFi. Merchant may use the Payment Network Marks only to promote the payment services covered by the Payment Network Marks by using them on decals, indoor and outdoor signs, websites, advertising materials and marketing materials. Merchant shall not use the Payment Network Marks in any way that may give a customer the impression that the products or services offered by Merchant are sponsored or guaranteed by the owners of the Payment Network Marks. Merchant shall modify or cease any non-compliant usage of Payment Network Marks within five (5) Business Days of written notice; failure to comply with such notice shall be a material breach of this Agreement. Merchant’s use of Payment Network Marks is subject to the terms herein. Merchant shall cease all use of Payment Network Marks upon termination of this Agreement for any reason.
       2. JustiFi, Bank, Processor, and Payment Network Marks. Merchant shall not use the logo, name, trademark, or service mark of JustiFi, its licensors, and/or Processor in any manner, including without limitation, in any advertisements, displays, or press releases, without the prior written consent of JustiFi, its licensors, or Processor, as applicable. Merchant will not contest the ownership of the Payment Networks’ marks for any reason. Payment Network may at any time, immediately and without advance notice, prohibit Merchant from suing such Payment Network’s marks for any reason. Notwithstanding the foregoing, Merchant may use Processor Marks in connection with Optional Services as expressly permitted in the applicable Schedule to this Agreement.
       3. Ownership of Services. All right, title, and interest (including all intellectual property rights embodied therein) in and to the Services will remain the sole and exclusive property of JustiFi or its licensors. Neither this Agreement grants Merchant any right or title of ownership in or to the Services, or any component thereof. Merchant will not, at any time, take or cause any action, which could be inconsistent with or tend to impair the rights of JustiFi, or its affiliates, licensors, or third-party processors, in the Services. Merchant will not remove or alter any proprietary or copyright notices, trademarks, or logos of Justify or its third-party processors. Merchant retains ownership of its data and content that is processed or hosted by the Services, including graphics and text provided by Merchant for inclusion.
5. Non-Bank Card Transactions.
   1. Non-Bank-Cards. Non-Bank Card transactions that are provided to Merchant include certain transactions made using Discover Network and American Express, as described below. The Payment Processing Services provided, transactions processed, and other matters contemplated under this Section 5 are subject to all of the terms and conditions of this Agreement, as applicable, except to the extent the terms of this Section 5 or the applicable schedule directly conflict with another provision of this Agreement, in which case the terms of this Section 5 and the applicable schedule will control. Merchant authorizes JustiFi and its licensors to share information from Merchant’s Application with American Express, Discover Network, and any other non-bank payment networks.
   2. American Express. If Merchant accepts American Express, Merchant agrees and understands that if, based upon Merchant’s anticipated Card Transaction volume Merchant does not qualify for the OptBlue Program but has otherwise been approved for accepting American Express transactions, Merchant’s authorizations and settlements will be obtained from and funded directly by American Express. American Express may provide Merchant with its own agreement that governs those transactions. Any additional fees charged by American Express for these services will be billed to Merchant. JustiFi and its licensors assume no liability with regard to any such transactions, including but not limited to the funding and settlement of American Express transaction.
      1. Merchant acknowledges that it may be converted from the OptBlue Program to a direct Card acceptance relationship with American Express if and when Merchant becomes a High CV Merchant. Upon conversion, Merchant expressly agrees (A) the Merchant will be bound by American Express’ then current Card Acceptance Agreement, (B) American Express will set pricing and other fees payable by the Merchant for Card Acceptance, and (C) American Express will be responsible for settlement in accordance with the American Express Card Acceptance Agreement.
      2. American Express is a third-party beneficiary of this Agreement and may enforce the terms of this Agreement against Merchant. Notwithstanding the foregoing, American Express shall have no obligations to Merchant.
      3. Merchant may opt out of accepting American Express Cards at any time without directly or indirectly affecting its rights to accept any other charge, credit, debit, stored value or smart cards, account access devices, or other payment cards, services, or products.
   3. Discover Network. As to Discover Network Cards, Merchant may not use, store, or disclose Card Transaction data or Merchant information except as permitted under the terms of the Discover Operating Regulations, including the technical specifications and the Dispute Rules Manual. Merchant agrees that it may not require a minimum or maximum purchase amount for use of Discover Network Card or impose any surcharge or convenience fee on Card Transactions except as permitted by the Discover Operating Regulations and Applicable Law.
   4. JCB; Diner’s Club; UnionPay; DinaCard. If Merchant accepts JCB, Diners Club International, UnionPay, Bccard, and Dinacard Merchant agrees to be bound by the Discover Network provisions of this Agreement as set forth in this Section 5. Merchant acknowledges and agrees that JCB Diners Club International, and UnionPay transactions will be processed under and subject to Discover Network Payment Network Rules.
   5. Provisional Payments. All credits to the Custodial Account and payments to JustiFi are provisional and are subject to collection by JustiFi and its licensors.
   6. Non-Bank Card Transactions are provided to you by Processor and include certain Transactions made using Discover Network and American Express, except the American Express OptBlue® Program, as described in Schedule A to this Agreement. The Payment Processing Services provided, transactions processed, and other matters contemplated herein are subject to all of the terms and conditions of this Agreement, as applicable, except to the extent the terms of this subsection or the applicable Schedule directly conflict with another provision of this Agreement, in which case the terms of this subsection and applicable Schedule will control. You authorize Bank to share information from your Merchant Application with American Express, Discover Network, and any other Non-Bank Payment Network.
6. Settlement Terms.
   1. Settlement Amounts. All settlements received from Card Transactions will be net of amounts:
      1. That Payment Networks are permitted to deduct pursuant to their respective Payment Network Rules, including without limitation, Chargebacks, Credits, interchange fees, other fees, fines and assessments arising from PF Supplier’s Merchant’s Card Transactions,
      2. All Fees and other charges payable to Bank. All credits to the Merchant are provisional and are subject to collection by Bank,
      3. Set off from settlement amounts due Merchant of any amounts payable to Bank or any of its Affiliates pursuant to this Agreement, including withholding of amounts of any deficiencies in any Reserve Account with respect of this Agreement, and
      4. Set off from settlement amounts payable to Merchant any amounts owed to Bank or any of its Affiliates not arising out of or related to this Agreement.
      5. Alternatively, Bank may elect, in its sole discretion, to invoice Merchant for any of the amounts listed in this Section 6, which invoice shall be due and payable on the date of issuance.
      6. Merchant will have no ownership, security interest or beneficial interest in any funds held by Bank in respect of Transactions whether or not attributable to Transactions submitted by or on behalf of Merchant or payable to Merchant pursuant to this Agreement, except pursuant to the deposit agreement governing the Merchant Settlement Account.
   2. Delay in Settlement.
      1. Bank will not be liable for delays in providing Settlement to Merchant. Without limitation of the foregoing, Bank may, in its sole discretion and without notice to Merchant, delay Settlement when Bank determines that circumstances warrant delay or for regulatory reasons or when fraud or other malfeasance is suspected.
      2. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, BANK’S LIABILITY FOR ANY DELAY IN FUNDING TRANSACTIONS FOR ANY REASON, OTHER THAN FOR MERCHANT’S FAILURE TO MEET THE REQUIREMENTS OF THIS AGREEMENT OR IF A PAYMENT NETWORK CAUSES A DELAY IN SETTLEMENT OR AS OTHERWISE PROVIDED HEREIN, FOR WHICH BANK SHALL BEAR NO LIABILITY, WILL BE LIMITED TO INTEREST COMPUTED FROM THE DATE WHEN SETTLEMENT WAS DUE ABSENT EXCUSED DELAYS TO THE DATE THAT THE TRANSACTION IS FUNDED AT THE RATE OF THE FEDERAL FUNDS AS SET BY THE FEDERAL RESERVE BANK OF NEW YORK, NEW YORK, FROM TIME TO TIME, LESS ONE PERCENT (1%), BUT NOT LESS THAN ZERO PERCENT (0%).
   3. Settlement during Default. In addition to any other remedies available to JustiFi and Bank under this Agreement, Merchant agrees that should any Default Event occur, JustiFi and Bank may, with or without notice, change processing or payment terms and/or suspend credits or other payments of any and all funds, money and amounts now due or hereafter to become due pursuant to the terms of this Agreement, until JustiFi and Bank have had reasonable opportunity to investigate such event, provided that such action shall not delay or waive JustiFi’s or Bank’s right to any other remedy available to it or to any of its or Affiliates or Bank under this Agreement, at law, or in equity.
   4. IRS Reporting and Backup Withholding. Each year, a Form 1099-K, which reports to the IRS and certain state governments the Gross amount of the reportable payment Card Transactions that were processed during the tax year. To tile the Form 1099-K, the information provided by Merchant regarding its taxpayer identification number (“TIN“) and related information must be accurate. JustiFi and Bank will be required to deduct and withhold income tax from funds if (i) a TIN is not provided; or (ii) the IRS notifies JustiFi or Bank that the TIN does not match the tax filing name provided. Accordingly, Merchant agrees to provide to JustiFi the correct name and TIN used by Merchant when filings its tax returns that includes the Card Transactions processed pursuant to this Agreement.
   5. Collection of Amounts Owed. This Agreement is a contract whereby JustiFi is extending financial accommodations to Merchant within the meaning of Section 365(c) of the U.S. Bankruptcy Code. Merchant’s right to receive any amounts due or to become due from JustiFi or Bank is expressly subject and subordinate to Chargebacks, setoffs, liens, security interests and JustiFi’s or Bank’s rights to withhold Settlement Funds under this Agreement, without regard to whether such Chargebacks, setoffs, liens, security interests, and rights to withhold Settlement Funds are being applied to claims that are liquidated, unliquidated, fixed, contingent, matured, or unmatured.
7. Merchant Reserve Accounts.
   1. Reserve Account. If Bank, in its sole discretion requires, Bank will establish a Reserve Account to be held in and owned exclusively by Bank, subject to the following terms and a Reserve Account deposit agreement in a form provided by Bank. Bank, in its sole discretion, may access and apply funds held in the Reserve Account to satisfy any and all obligations of Merchant under this Agreement, including such obligations of Merchant and Merchant’s payment facilitator or PF Suppliers under their respective agreements pertinent to Merchant, under the Operating Regulations or Applicable Law. Such recourse to the Reserve Account shall not be Bank’s sole remedy to such obligations and Bank may exercise any remedies available to Bank in this Agreement or Applicable Law. Bank may exercise available remedies in the order and apply proceeds therefrom to the obligations as it determines in its sole discretion.
   2. Funding. The Reserve Account may be funded by all or any combination of the following: (i) one or more debits to your Merchant Settlement Account, wherever held, or any other accounts held by Bank or any of its Affiliates, at any financial institution maintained in the name of Merchant, any of its principals, or any of its guarantors, or if any of same are authorized signers on such account; (ii) withholding any payments otherwise due to you, including any amount due arising from optional services provided by Bank or Processor; (iii) your delivery to Bank of a letter of credit; or (iv) if we so agree or require, your pledge to Bank of a freely transferable and negotiable certificate of deposit. Any such letter of credit or certificate of deposit shall be issued or established by Bank or a financial institution acceptable to Bank and shall be in a form satisfactory to Bank. In the event of termination of this Agreement by any Party, an immediate Reserve Account may be established without notice and funded in the manner provided above. Any Reserve Account will be held by Bank for the greater of one hundred eighty (180) days from the date of the last Card Transaction processed under the Agreement, plus the period allowed for or of any Chargeback, warranty, guarantee, and/or return policy on goods and/or services sold. We will hold funds in master account(s) which include funds due other Entities, with your funds allocated to a separate sub-account. Unless specifically required by Applicable Law, you shall not be entitled to interest on any funds held by Bank in a Reserve Account.
   3. Insufficient Funds. If your funds in the Reserve Account are not sufficient to cover the Chargebacks, adjustments, fees and other charges and amounts due from you, or if the funds in the Reserve Account have been released, you agree to promptly pay Bank such sums upon request.
   4. Right of Set-Off. For sake of clarification and notwithstanding anything in the Agreement to the contrary, if Bank deducts, holds back, suspends, recoups, offsets or sets off any Settlement monies or amounts otherwise due you pursuant to the terms of this Agreement (collectively “Set Off Funds“), you acknowledge that such Set Off Funds may be held in a commingled Reserve Account(s) of Bank.
8. Calculation of Fees.
   1. Fees and Other Amounts Owed. Merchant shall pay the fees and charges as set forth on the Order Form, as may be changed from time to time and which are incorporated herein by reference (the “Fee Schedules”). Unless otherwise noted, Merchant shall pay all fees monthly or daily as set forth on the Fee Schedules or at JustiFi’s sole discretion. JustiFi may set off for such amounts and for any other fees, charges or adjustments incurred by Merchant and associated with processing services due hereunder from any amounts owed to Merchant or from any account made known to JustiFi by Merchant (the “Bank Account”) through internal transfer or ACH. Merchant is also obligated to pay all taxes and other charges imposed by any governmental authority on the services provided under this Agreement. Merchant will immediately pay JustiFi any amount incurred by JustiFi or Bank attributable to this Agreement or any other agreement between Merchant and JustiFi or any subsidiary or affiliate of Merchant, including but not limited to equipment fees, compliance-related fees (including PCI), chargebacks, fines or penalties imposed by a third party, nonsufficient fund fees, and ACH debits that overdraw the Bank Account, Reserve Account, or are otherwise dishonored. Merchant agrees to pay JustiFi the amount of any fees, charges or penalties assessed against JustiFi or Bank by any Payment Network or Bank for Merchant’s violation of the by-laws, rules, regulations, guidelines, policy statements or threshold requirements of such parties. Merchant authorizes JustiFi to debit the Bank Account, Reserve Account, any other account Merchant has with Bank via internal transfer or ACH initiated for any amount Merchant owes under this Agreement, whether Merchant’s obligation is direct, indirect, primary, secondary, fixed, contingent, joint or several. In the event such transfer or ACH does not fully reimburse JustiFi and Bank for the amount owed, Merchant will immediately pay JustiFi such amount.
   2. Network Fees. Merchant agrees to pay JustiFi all fees, fines, assessments, loss allocations, and penalties as imposed by the Payment Networks or Bank as function of or in connection with Merchant’s action, inaction, or sponsorship to the Payment Networks, whether incurred by Merchant, JustiFi, Bank, or their respective affiliates or agents. The interchange and other fees assessed by Payment Network are subject to change and to surcharges by the applicable Payment Network with such changes and/or surcharges effective as determined by such organizations. Merchant acknowledges that JustiFi has a right to round, assess, and calculate interchange and other fees and amounts in accordance with its standard operating procedures. Each sales transaction is evaluated separately by the applicable Payment Network or JustiFi to determine the qualifying interchange and other fees. If for any reason any sales transaction submitted on behalf of the Merchant fails to qualify for the lowest interchange or other fees, JustiFi may charge Merchant for any incremental fees or expenses related to the transaction. Sales transactions occurring at Merchant’s locations outside the United States (when supported by JustiFi at its sole discretion) are subject to additional charges as imposed by the applicable Payment Network which shall be assessed to Merchant.
   3. Reimbursement of Fees. Fees include a portion based on the interchange reimbursement fee for which each Card Transaction qualifies under the applicable Payment Network Rules. If a Card Transaction fails to qualify for the anticipated interchange levels or if Merchant inadvertently or intentionally accepts a Card Transaction other than the type anticipated for Merchant (including a different Card type), then, as applicable to the pricing method, Merchant will be charged a higher interchange, discount rate, or Non-Qualified Interchange Fee, as well as any applicable surcharge for that Card Transaction.
   4. Anticipated Card Transaction Volumes. The fees for the Payment Processing Services set forth in the Order Form are based upon assumptions associated with the anticipated annual volume and average Card Transaction size for all Payment Processing Services as set forth in this Agreement and Merchant’s methods of doing business. If the actual volume or average Card Transaction size are not as expected or if Merchant alters its methods of doing business, JustiFi may adjust Merchant’s discount fee and transaction fees without prior notice.
   5. Commercial Card Interchange Service. Visa and MasterCard apply different interchange rates to commercial Card Transactions based on the level of transaction detail that Merchant provides in its settlement files. Merchant must include the sales tax amount for commercial Card Transactions to qualify for lower interchange rates and must meet the qualification requirements set forth by Visa and Mastercard, as may be updated. If Merchant does not report the sales tax amount in a separate and distinct field in its settlement files, the Commercial Card Interchange Service (“CCIS“) will be used to calculate and transmit the sales tax amount for those commercial Card Transactions that will qualify for lower exchange rates. The fee portion of the qualifying interchange rate saved will show on Merchant’s monthly statements as “Commercial Card IC Savings Adjustment.” Bank will enroll Merchant for CCIS in accordance with Processor’s then-current set-up procedures.
9. Confidentiality and Privacy.
   1. Confidentiality. From time to time during the term of this Agreement, either Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“), Confidential Information of Disclosing Party; provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 9(a); (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by Applicable Laws or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, notify Disclosing Party of such requirements, to the extent that notice to Disclosing Party is legally permissible, to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 9(a) only, Receiving Party’s group shall mean the Receiving Party’s employees, officers, directors, attorneys, accountants, and financial advisors.
   2. Cardholder Data. Merchant shall not use, disclose, store, sell, or disseminate any Cardholder Data obtained in connection with a Card Transaction (including the names, addresses, and Card account numbers of Cardholders) except for purposes of authorizing, completing, and settling Card Transactions and resolving any Chargebacks, Retrieval Requests, or similar issues involving Card Transactions, other than pursuant to a court or governmental agency request, subpoena, or court order. Merchant shall use proper controls for and limit access to, render unreadable prior to discarding, all records containing Cardholder account numbers and Card imprints. Merchant shall not retain or store Magnetic Stripe Data or Card Validation Codes after a transaction has been authorized. If Merchant stores any electronically captured signature or biometric authentication data of Cardholder, Merchant may not reproduce such signature or biometric data except upon JustiFi’s or Bank’s specific request.
   3. Card Transaction Ownership. Merchant acknowledges that it will not obtain ownership rights in any information relating to and derived from Card Transactions. Cardholder Data, including account numbers, personal information, and other Card Transaction information, including any databases containing such information, may not be sold or disclosed to an Entity as an asset upon a bankruptcy, insolvency, or failure of Merchant’s business. Upon a bankruptcy, insolvency, or failure of Merchant’s business, all Card Transaction information and Cardholder Data must be returned to Bank or proof of the destruction of all Card Transaction information and Cardholder Data acceptable to Bank must be provided to Bank.
   4. Use of Data. Merchant acknowledges that breach of the restrictions on use or disclosure of any of JustiFi’s or its licensors’ confidential information would result in immediate and irreparable harm to JustiFi and its licensors, and money damages would be inadequate to compensate for that harm. JustiFi and its licensors shall be entitled to equitable relief, in addition to all other available remedies, to redress any breach.
   5. JustiFi and Licensor Use of Data. JustiFi and its licensors may use Transaction Data that is collected in performing the Services for the purpose of providing additional products and services.
10. Transaction Processing Requirements.
    1. Transaction Receipts. Merchant shall not submit any Transaction that Merchant knows or should know to be fraudulent or not authorized by the Cardholder, or that Merchant knows or should know to have a fraudulent purpose.
    2. Quasi Cash Transactions. Merchant shall not accept Cards for Quasi-Cash Transactions or submit any Transactions that result in the disbursement of any time of cash or quasi cash to a Cardholder.
11. Audits and Inspections. Merchant will provide to JustiFi, Bank or their designated representatives access to all books and records of Merchant requested by JustiFi or Bank for the purpose of determining Merchant’s compliance with its respective obligations pursuant to this Agreement. Merchant will provide such access within three (3) Business Days after Banks’s notice of such request. Additionally, Merchant will provide access and copying to books and records and to premises as may be requested by any Payment Network or governmental regulator with authority over JustiFi, Bank, Processor, or Merchant. The rights of access to books and records and inspection of premises are in addition to any other rights to obtain information, to audit, and to inspect Merchant’s books, records, and premises provided under this Agreement or under Applicable Laws and Operating Regulation. You agree that JustiFi and Bank may share information obtained with processors and JustiFi’s and Bank’s respective affiliates, Bank’s regulators and any other Person as required by Applicable Law or Operating Regulations.
12. Engagement of Suppliers. Merchant may engage a PF Supplier to provide Merchant Point-of-Sale terminal services subject to the terms stated in the Data Security Requirements and the following:
    1. Responsibility for Third Party Service Providers. Merchant’s use of the services, equipment, software, systems, materials, supplies or resources of third parties regarding Merchant’s Card Transactions processing, including, without limitation, PF Suppliers and any third-party lessors or licensors, will not affect your obligations under this Agreement to Bank, which will apply to the same extent as if you had not used them. Bank has no liability or responsibility to Merchant or others regarding these third parties, even if Bank referred them to Merchant. These third parties are Merchant’s agents, and Merchant is solely responsible for: (i) determining whether they can meet your needs and standards, (ii) their actions, inactions and compliance with the terms of this Agreement, the Operating Regulations and Applicable Law, and (iii) any and all fees, costs, expenses and other obligations owed to them by Merchant or owed by them to Bank, Processor or Payment Networks. Bank reserves the right to disapprove any proposed third-party service providers. Any third-party service providers contracted by Merchant must be registered with Payment Networks if required by Payment Network Rules. Merchant must provide Bank with all information regarding Merchant’s PF Suppliers and Merchant consents and represents and warrants that Merchant’s third-party service providers consent, to our providing any such information to Payment Networks as necessary to register Merchant’s service provider or otherwise as a Payment Network may request. Merchant may not use the services of a service provider until approved by Bank and registered with all applicable Payment Networks.
    2. Third-Party Terminal Providers. Merchant will immediately notify Bank if Merchant decides to use electronic authorization or data capture terminals provided by any entity other than Processor or Bank’s authorized designee (“Third-Party Terminals“) to process transactions, including leasing a terminal from a third party. If Merchant elects to use Third-Party Terminals, (i) the third party providing the terminals will be Merchant’s agent in the delivery of Card Transactions to Bank; and (ii) Merchant assumes full responsibility and liability for any failure of that third party to comply with the requirements of Bank, Processor, the operating Regulations, Applicable Law or this Agreement. Bank will not be responsible for any losses or additional fees incurred by Merchant as a result of any error by a third-party agent or third-party service provider or a malfunction in a Third-Party Terminal. Merchant is responsible to ensure that Third-Party Terminals meet Processor’s certification standards and are PA-DSS compliant.
    3. Internet Connectivity Responsibility. The use of agents or third-party service providers or an agent’s or third-party service provider’s software application that has connectivity to the Internet poses an increased risk, and Merchant assumes all liability for such increased risks. If Merchant utilizes software or hardware with a connection to the Internet and such hardware or software interacts in any capacity with the provision of Services provided pursuant to this Agreement, Merchant is solely liable without limitation for any and all consequences of such interaction.
    4. Verifone Terminal or Equipment. If Merchant uses a terminal or other equipment provided by or on behalf of Verifone, Inc. or its affiliates (“Verifone”), Merchant acknowledges that its use of such equipment is subject to Verifone’s terms and conditions available at https://www.Verifone.com/en/global/legal/Verifone-standard-terms-conditions and hereby agrees to such terms. Merchant acknowledges and agrees that such Verifone equipment is leased to Merchant from JustiFi and Merchant shall have no right, title, or interest therein except as a lessee. Merchant shall operate such Verifone equipment in accordance with its operating manuals. Merchant shall be responsible for any damage or loss to such equipment while in Merchant’s possession. Upon expiration or termination of the lease related to such equipment, Merchant shall promptly return such equipment to JustiFi as set forth in Attachment 2. JustiFi does not warrant and does not assume and will not have any liability to Merchant for any such Verifone equipment. Merchant acknowledges and agrees that Verifone is a third party beneficiary of this Agreement as it relates to Merchant’s use of the Verifone equipment.
13. Merchant Data Security Requirements. THE FOLLOWING IS IMPORTANT INFORMATION REGARDING THE PROTECTION OF CARDHOLDER DATA. PLEASE REVIEW CAREFULLY AS FAILURE TO COMPLY CAN RESULT IN SUBSTANTIAL FINES, ASSESSMENTS AND LIABILITIES FOR UNAUTHORIZED DISCLOSURE OF CARDHOLDER DATA AND TERMINATION OF THIS AGREEMENT.
    1. Applicability. Data security requirements apply to all of Merchant’s systems and locations where Cardholder Data is collected, processed, transmitted or stored and includes all such functions performed by Merchant and JustiFi and its licensors or any other vendor, supplier, agent or representative performing such functions or having access to Cardholder Data (other than Bank), including without limitation all Merchant Equipment, including: (i) all external connections into Merchant’s network (i.e., employee remote access, third-party access for processing, and maintenance); (ii) all connections to and from the authorization and settlement environment (i.e., connections for employee access or for devices such as firewalls, and routers); and (iii) any data repository outside of the authorization and settlement environment. Merchant shall not permit any PF Supplier provider to store Cardholder or Transaction Data outside the U.S. or allow access to such data to any Entity located outside the U.S., including employees, agents and affiliates of Merchant, without the prior written consent of Bank.
    2. Security Measures. At all times during the Term of this Agreement and thereafter for as long as Merchant retains any Cardholder Data, Merchant must: (i) continuously take all reasonable precautionary measures to safeguard Cardholder Data from unauthorized access, disclosure and use; (ii) comply with all data security requirements as prescribed by Operating Regulations and by Bank from time to time; and (iii) without limitation of the foregoing, at least comply with the following data security requirements:
       1. Install and maintain a secure network firewall to protect data across public networks;
       2. Comply with all requirements of the PCI-DSS applicable to Merchant, including protecting stored data, data captured by, held in and transmitted from Card terminals and data sent across networks by using methods indicated in the PCI-DSS. See below, for full data security requirements and links to PCI and Payment Network data security rules;
       3. Use and regularly update anti-virus software and keep security patches up to date; iv. Restrict access to data to only individuals who have a “need to know” such information to perform duties;
       4. Assign a unique ID to each individual with computer access to data and track access to data by unique ID, and promptly disable access to data for individuals who no longer should have access;
       5. Not use vendor-supplied defaults for system passwords and other security parameters;
       6. Regularly test security systems and processes;
       7. Maintain a policy that addresses information security for employees and contractors;
       8. Restrict physical access to Cardholder information;
       9. Not send Card account numbers to Cardholders for Internet and/or ecommerce transactions. Communications with Cardholders that include Card numbers may only show the last four digits of the Card number;
       10. Not store or retain Card Validation Codes (three-digit values printed in the signature panel of most Cards, and a four-digit code printed on the front of an American Express Card) after final transaction authorization;
       11. Not store or retain Magnetic Stripe Data, PIN data, Chip data or AVS data; only Cardholder account number, Cardholder name and Cardholder expiration data may be retained subsequent to transaction authorization;
       12. Destroy or purge all Media containing obsolete Cardholder Transaction Data;
       13. Keep all systems and Media containing Card account, Cardholder or transaction information (whether physical or electronic) in a secure manner so as to prevent access by, or disclosure to any unauthorized party;
       14. Use only services and Merchant Equipment that have been certified as PCI-DSS or PA-DSS compliant (as applicable) by the Payment Networks.
    3. Payment Network Security Rules. In addition to compliant with PCI-DSS requirements, Merchant must comply with data security requirements stated in the Payment Network Rules for each Card that Merchant has elected to accept under this Agreement, or applicable under the Payment Network Rules that Merchant accepts inadvertently or intentionally without having made such election. Merchant must comply with changes and additions to the PCI-DSS and Operating Regulations as well as notifications from Bank regarding new data security requirements. The “Account Information Security Program (AISP)” is Visa’s data security program, the “Site Data Protection (SDP)” program is Mastercard’s data security program, “Discover Network Information Security and Compliance (DISC)” is Discover Network’s data security program, and the “Data Security Operating Policy (DSOP)” is American Express’ data security program, each of which includes the PCI-DSS and validation requirements and additional network specific requirements. Each Payment Network security program imposes associated fines and assessments for non-compliance, for which Merchant will be responsible. Detailed information about security standards can be found at the following websites, or other websites designated by the Payment Networks from time to time:
       1. PCI-DSS: https://www.pcisecuritystandards.org
       2. Visa AISP: https://bm.visa.com/run-your-business/small-business/information-security/ais-program.html
       3. Mastercard/SDP: https://www.mastercard.com/sdp
       4. Discover Networks DISC: http://www.discovernetwork.com/merchants/data-security/disc.html
       5. American Express DSOP: https://www.americanexpress.com/datasecurity
    4. Payment Networks have the right to enforce any provision of their respective Payment Network Rules and to prohibit Merchant and/or JustiFi from engaging in any conduct that the Payment Network deems could injure or could create a risk of injury to the Payment Network including injury to reputation, or that could adversely affect the integrity of the Payment Network, the Payment Network’s confidential information as defined in the Payment Network Rules, or both; and Merchant will not take any action that could interfere with or prevent the exercise of this right by the Payment Networks. Each Payment Network may use the information obtained in the Merchant Application to screen, communicate with, and/or monitor Merchant in connection with Card marketing and administrative purposes.
    5. Non-Compliance. JustiFi, the Payment Networks and/or Bank may impose fines or penalties or restrict Merchant from accepting Cards if it is determined that Merchant is not compliant with the applicable data security requirements. JustiFi or Bank may in its respective sole discretion, suspend or terminate the Payment Processing Services under this Agreement for any actual or suspected Data Compromise Event . Merchant agrees that it will not request any Authorizations, or submit any Sales Drafts or Credit Vouchers until it has read and understood the PCI-DSS, AISP, SDP, DISC, and DSOP, for which Merchant acknowledges have provided to it sufficient information to obtain, and Merchant will be deemed to have done so upon JustiFi’s receipt of Merchant’s request or Submission of any Authorizations, Sales Drafts, or Credit Vouchers.
    6. Audits and Reports. Merchant must comply with all audits and reporting requirements of PCI-DSS that are applicable to it, including audits by Qualified Security Assessors or completion of Self-Assessment Questionnaires and provide its validation of compliance to JustiFi. Furthermore, JustiFi and the Bank retains the right to conduct an audit at Merchant’s expense, performed by Bank or Entity designated by Bank to verify Merchant’s compliance, or that of Merchant’s agents or third-party service providers, with security procedures and the Operating Regulations. Merchant shall provide for such audits by JustiFi or its designated auditors contractually with all of Merchant’s third-party service providers that have access to Cardholder Data.
    7. Notice of Data Compromise. In the event of any known or suspected Data Compromise Event, including any Data Compromise Event incurred by Merchant’s PF Suppliers, Merchant must contact Bank and JustiFi immediately, and in no event more than twenty-four (24) hours after becoming aware of such activity or suspected activity.
    8. Investigation. Merchant must, at its own expense: (i) perform or cause to be performed an independent investigation, including a forensics analysis performed by a certified forensic vendor acceptable to Bank and the Payment Networks in accordance with Payment Network standards, of any Data Compromise Event; (ii) provide a copy of the certified forensic vendor’s final report regarding the incident to Bank, JustiFi and the Payment Networks; (iii) perform or cause to be performed any remedial actions recommended by any such investigation; and (iv) cooperate with Bank in the investigation and resolution of any Data Compromise Event. Notwithstanding the foregoing, if required by a Payment Network, JustiFi or Bank will engage a forensic vendor approved by a Payment Network at Merchant’s expense. Merchant must, and Merchant must cause its PF Suppliers to, cooperate with the forensic vendor so that it may immediately conduct an examination of Merchant’s and its PF suppliers’ premises, equipment, systems and software, procedures and records reasonably related to a Data Compromise Event and issue a written report to JustiFi, Bank and Payment Networks of its findings.
    9. Discover Card Notice Requirements. For any Data Compromise Event involving Discover Network transactions and/or track data, Merchant must provide JustiFi and/or Discover Network with the following information: (i) the date of breach; (ii) details concerning the data compromised (e.g., account numbers and expiration dates, Cardholder names and addresses, etc.); (iii) the method of such breach; (iv) Merchant’s security personnel contacts; (v) the name of any person (including law enforcement) assisting Merchant with its investigation of such breach; and (vi) any other information which JustiFi reasonably requests from Merchant concerning such Data Compromise Event, including forensics reports. Merchant shall provide such information as soon as practicable, and the items listed in (i)–(vi) shall be provided to JustiFi and Bank in any event within forty-eight (48) hours of Merchant’s initial notification to JustiFi and Bank of the Data Compromise Event.
    10. PF Suppliers’ Compliance. Merchant must ensure that the data security standards set forth in this Section apply to Merchant’s PF Suppliers, and Merchant’s PF Suppliers comply with the terms hereunder. Before Merchant engages any third-party service providers, Merchant must provide JustiFi and Bank in writing: (i) the third-party service provider’s legal name, (ii) contact information, and (iii) intended function. Merchant must also provide to JustiFi and Bank ten (10) days’ prior written notice prior to making any changes with respect to any third-party service providers, including changing an existing third-party service provider’s function. Merchant acknowledges and agrees that it will not use, or provide Cardholder Data access to, any third-party service providers until Merchant receives JustiFi’s s approval and, if required, confirmation of JustiFi’s registration of that PF Supplier with applicable Payment Networks. Merchant must ensure that it and its PF Supplier: (x) comply with the registration process which can involve site inspections, background investigations, provision of financial statements and any other information required by a Payment Network; (y) comply with the periodic and other reporting required by a Payment Network; and (z) comply with all applicable Operating Regulations and Applicable Law, including without limitation, those requiring security of Cardholder Data. Merchant may allow PF Suppliers access to Cardholder Data only for purposes authorized under and in conformance with the Operating Regulations and Applicable Law. Merchant is responsible for all JustiFi’s costs and expenses associated with JustiFi’s review, approval, certification (and recertification as may be required by Bank or the Operating Regulations) and registration of any third-party service providers. Bank’s Processor as of the Effective Date is compliant with PCI-DSS and will provide Merchant a current SSAE 16 report indicating such compliant status upon Merchant’s request.
    11. Validation Fee. If JustiFi has not received receipt of Merchant’s validation of compliance with Merchant’s PCI-DSS standards within the first ninety (90) days of the date of this Agreement, Merchant will be charged a monthly non-receipt of PCI validation fee as set forth in the Merchant Application or as otherwise communicated to Merchant, for the period beginning upon expiration of the 90-day period, until such time as Merchant is compliant or this Agreement is terminated, whichever comes first. This monthly non-receipt of PCI validation fee is in addition to any and all other fees for which Merchant is responsible related to Merchant’s failure to comply with requirements hereunder, including without limitation thereof termination of this Agreement by JustiFi or Bank.
    12. Data Compromise Losses. If Merchant or any of Merchant’s PF Suppliers (or other Entity used by Merchant) is determined by any Payment Network, regardless of any forensic analysis or report, to be the likely source of any Data Compromise Event and regardless of Merchant’s belief that it has complied with the Operating Regulations or any other security precautions and are not responsible for the Data Compromise Event, Merchant must promptly pay any Data Compromise Losses arising from Merchant’s operations or from operations of its PF Suppliers, without regard to any limitations of liability stated in the Agreement.
    13. Telecom Data. Merchant agrees that JustiFi may obtain relevant information from any telecommunications provider utilized by Merchant as necessary to investigate any allegation of fraud or other actual or alleged wrongful act by Merchant in connection with the Merchant Services.
14. Security Interest and Set Off Rights.
    1. Security Interest. To secure Merchant’s obligations to Bank and Bank’s respective Affiliates under this Agreement and any other agreement for the provision of equipment, products, or services (including any obligations for which payments on account of such obligations are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy act, state or federal law, common law or equitable cause), Merchant grants to Bank a first priority lien and security interest in and to: (i) the Reserve Accounts; (ii) Merchant’s Merchant Settlement Account; (iii) any interest Merchant may have in the funds held by Bank in its Custodial Account; (iv) any of Merchant’s funds pertaining to the Card Transactions contemplated by this Agreement now or hereafter in JustiFi’s possession, whether now or hereafter due or to become due to Merchant from Bank; and (v) any other deposit account of Merchant with a financial institution, whether now existing or established in the future . If Bank permits Merchant to hold its Merchant Settlement Account in another financial institution, Merchant must provide a Deposit Account Control Agreement signed by such financial institution in a form acceptable to Bank before Bank or JustiFi will transfer any Settlement Funds to the Merchant Settlement Account. Such account must be held at a financial institution domiciled in the United States. Any such funds, money, or amounts now or hereafter in Bank’s possession may be commingled with other funds of Bank’s, or with any other funds of other customers or merchants of Bank’s. In addition to any rights now or hereafter granted under Applicable Law and not by way of limitation of any such rights, Bank is hereby authorized by Merchant at any time and from time to time, without notice or demand to Merchant or to any other Entity (any such notice and demand being hereby expressly waived), to set off, recoup, and to appropriate and to apply any and all such funds against and on account of Merchant’s obligations to Bank and its respective Affiliates under this Agreement and any other agreement with Bank or JustiFi or their respective Affiliates for any related equipment or related services (including any check services), whether such obligations are liquidated, unliquidated, fixed, contingent, matured or unmatured. Merchant agrees to duly execute and deliver to Bank such instruments and documents as Bank may reasonably request to perfect and confirm the lien, security interest, right of set off, recoupment and subordination set forth in this Agreement. If in replacement of or in addition to the first priority lien and security interest in the Reserve Account, Merchant grants to Bank a first priority lien and security interest in and to one or more certificates of deposit, the certificates of deposit shall be uncertificated and shall be subject to a pledge agreement by, between and among Merchant, Bank and the financial institution that has established and issued the certificate of deposit (if other than Bank). The form of the pledge agreement and the financial institution that will establish and issue the certificate of deposit shall be satisfactory and acceptable to Bank.
    2. Right of Set Off. For clarity and notwithstanding anything in this Agreement to the contrary, if Bank deducts, holds back, suspends, recoups, offsets or sets off any settlement monies or amounts otherwise due Merchant pursuant to the terms of this Agreement (collectively “Set Off Funds”), Merchant acknowledges that such Set Off Funds may be applied to Merchant’s obligations to Bank or held in a commingled Reserve Account(s) of Bank as determined by Bank in its sole discretion.
15. Cooperation with Enforcement Agencies. Merchant must fully cooperate with law enforcement, the government, the Payment Networks, or other regulatory bodies in all reasonable investigations.
16. Chargebacks. Merchant is responsible for all Chargebacks. Chargebacks must not be for excessive dollar amounts and transaction percentages. JustiFi may immediately terminate this Agreement if Merchant has a Chargeback rate greater than 0.50% and 75 Chargebacks for three (3) consecutive months.
17. Indemnity. Merchant is responsible for its own actions or inactions, those of its officers, directors, shareholders, employees, and agents, including any third-party service providers. Merchant will defend, indemnify, and hold JustiFi and Bank and its and their and its affiliates, directors, officers, employees, and agents harmless from any loss, claim, liability, or expense, including, without limitation, attorneys’ fees and costs, arising out of or in connection with Merchant’s failure to observe or comply with the provisions of this Agreement, including any actions or inactions, whether those of its officers, directors, shareholders, employees, and agents or any third-party service providers. This indemnity shall survive the expiration or termination of the term of the Agreement.
18. Limitation of Liability. EXCEPT FOR MERCHANT’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 17 AND MERCHANT’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 9(A), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL JUSTIFI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID TO JUSTIFI IN THE THREE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
19. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL WARRANTIES, CONDITIONS, AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW, OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTIES AS TO QUALITY, PERFORMANCE, TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, AND USAGE OF TRADE, ARE EXCLUDED FROM THIS AGREEMENT AND ANY ADDENDUM TO THE FULLEST EXTENT PERMITTED BY LAW. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND MERCHANT’S USE OF THE SERVICES ARE AT ITS OWN RISK. JUSTIFI DOES NOT WARRANT THAT THE SERVICES WILL MEET MERCHANT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR COMPLETELY SECURE OR ERROR-FREE.
20. Ongoing Review.
    1. Merchant will make available for review by JustiFi and Bank, upon request by JustiFi or Bank, the following: (a) Significant Owners, (b) compliance with Applicable Laws (e.g., UDAAP, UDAP), and other consumer laws, if applicable), (c) physical site survey, (d) business documentation verification, (e) financial information, (f) business credit report, (g) tax returns, and (h) bank statements. Further, Merchant agrees that JustiFi may conduct a physical site visit of Merchant’s business location(s).
    2. JustiFi and Bank may check Merchant against any watch list promulgated by the U.S. Government, including OFAC’s Specially Designated Nationals and Blocked Persons List and the U.S. Department of State’s Terrorist Exclusion List (TEL), and will take any necessary action to comply with Applicable Laws, including but not limited to providing required notifications, blocking Transactions or freezing funds, and alerting Bank of any confirmed positive match.
21. Post Termination Rights and Obligations.
    1. Bank’s Remedies. If any Default Event occurs, regardless of whether such Default Event has been cured, Bank and JustiFi may, in their respective sole discretion, exercise all of the rights and remedies under Applicable Law, and this Agreement.
    2. Bankruptcy. If Merchant files for protection under the U.S. Bankruptcy Code or any other laws relating to bankruptcy, insolvency, assignment for the benefit of creditors or similar laws, and continues to use the Services, it is Merchant’s responsibility to open new accounts to distinguish pre and post filing obligations. Merchant acknowledges that as long as Merchant utilizes the accounts established prior to such filing, neither JustiFi nor Bank will be able to systematically segregate Merchant’s post-filing transactions or prevent set-off of the pre-existing obligations. In that event, Merchant will be responsible for submitting an accounting supporting any adjustments that Merchant may claim.
    3. Merchant Responsibilities. After termination of the Payment Processing Services and this Agreement for any reason whatsoever, Merchant shall continue to bear total responsibility for all Chargebacks, fees, Payment Network fines or assessments imposed on Bank as a result of Merchant’s acts or omissions, Credits and adjustments resulting from Card Transactions processed pursuant to this Agreement, Data Compromise Losses and all other amounts then due or which thereafter may become due to Bank or JustiFi with respect to this Agreement.
    4. MATCH. Certain Payment Networks maintain merchant lists, such as the Member Alert to Control High-risk Merchants (“MATCH”), identifying merchants who have had their merchant agreements or Card acceptance rights terminated for cause. If this Agreement is terminated for cause, Merchant acknowledges that Bank or JustiFi may be required to report Merchant’s business name and the names and other information regarding its principals to the Payment Networks for inclusion on such list(s). Merchant expressly agrees and consents to such reporting if Merchant is terminated as a result of the occurrence of a Default Event or for any reason specified as cause by Visa, Mastercard, Discover Network or American Express. Furthermore, Merchant agrees to waive and hold Bank harmless from and against any and all claims which Merchant may have as a result of such reporting.
22. Miscellaneous.
    1. Merchant represents, warrants, and agrees that:
       1. Each Card Transaction is genuine and arises from a bona fide transaction permissible under the Payment Network Rules by the Cardholder directly with you, represents a valid obligation for the amount shown on the Sales Draft, preauthorized order or Credit Voucher, and does not involve the use of a Card for any other purpose;
       2. Each Card Transaction represents an obligation of the related Cardholder for the amount of the Card Transaction;
       3. The amount charged for each Card Transaction is not subject to any dispute, setoff or counterclaim;
       4. Each Card Transaction amount is only for merchandise or services (including taxes, but without any surcharge) sold, leased or rented by you pursuant to your business as indicated on the Merchant Application and, except for any delayed delivery or advance deposit Card Transactions expressly authorized by this Agreement, that merchandise or service was actually delivered to or performed for the Cardholder entering into that Card Transaction before or at the time when you submitted that Card Transaction for processing;
       5. With respect to each Card Transaction, you have no knowledge or notice of any fact, circumstance or defense which would indicate that such Card Transaction is fraudulent or not authorized by the related Cardholder or that would otherwise impair the validity or collectability of that Cardholder’s obligation arising from that Card Transaction or relieve that Cardholder from liability with respect thereto;
       6. You have not requested or required a Cardholder to waive a right to dispute a Transaction;
       7. Each Card Transaction is made in accordance with this Merchant Agreement and the Operating Regulations;
       8. Each Sales Draft is free of any alteration not authorized by the related Cardholder;
       9. You have completed one Card Transaction per sale; or one Card Transaction per shipment of goods for which the Cardholder has agreed to partial shipments;
       10. You are validly existing, in good standing and free to enter into this Agreement;
       11. Each statement made on the Merchant Application or other information provided to Bank in support of your Merchant Agreement is true, correct and complete;
       12. You are not doing business under a name or style not previously disclosed to Bank;
       13. You have not changed the nature of your business, Card acceptance practices, delivery methods, return policies or types of products or services sold requiring a different MCC under Payment Network Rules, in a way not previously disclosed to Bank;
       14. You will use the Services only for your own proper business purposes and will not resell, directly or indirectly, any part of the Services to any Entity;
       15. You have not submitted any Transactions that are illegal transactions or transactions that you should have known were illegal, for example, those prohibited by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq.;
       16. You have not submitted transactions to Bank that are Transactions between Cardholders and any other Entity, i.e., you have not engaged in Factoring or “laundering” of transactions;
       17. You have not filed a bankruptcy petition not previously disclosed to Bank;
       18. You own and control the Settlement Account, and no third-party security interest or lien of any type exists regarding the Settlement Account or any Card Transaction;
       19. You will not at any time during the term of this Agreement and thereafter until all amounts due under this Agreement have been paid in full and funds are released by Bank, grant or pledge any security interest or lien in the Reserve Account, Merchant Settlement Account or Transaction proceeds to any Entity without the consent of Bank and PF; and
       20. Merchant and each Principal of Merchant is not a Prohibited Entity, will not become a Prohibited Entity at any time during the Term, and is not and will not become “otherwise associated with” a Prohibited Entity within the meaning of 31 C.F.R. 594.316. Merchant is not: (i) located in or operating under a license issued by a jurisdiction whose government has been identified by the U.S. Department of State as a sponsor of international terrorism under 22 U.S.C. 2371 or 50 U.S.C. App. 2405(j), (ii) located in or operating under a license issued by a jurisdiction that has been designated as non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization of which the U.S. is a member, or (iii) located in or operating under a license issued by a jurisdiction that has been designated by the U.S. Secretary of Treasury pursuant to 31 U.S.C. 5318A as warranting special measures due to money laundering concerns. “Principal” means any individual or other Entity owning directly, indirectly, beneficially or otherwise controlling at least 25% of the equity or voting power of Merchant.
    2. Third-Party Beneficiary. Merchant is not a third-party beneficiary to JustiFi’s agreement with Bank or Processor and Merchant may not bring any claims related thereto against Bank or Processor.
    3. Automatic Termination. JustiFi will automatically and immediately terminate this Agreement if any Payment Network de-registers JustiFi, if Bank ceases to be a member of any of the Payment Networks for any reason, if Bank no longer has a license to use a Payment Network’s marks, or if Bank otherwise requires JustiFi to terminate this Agreement.
    4. Annual Volume over $1,000,000. In the event Merchant’s process annual volume is over one million dollars ($1,000,000) in Visa Transactions or one million dollars ($1,000,000) in Mastercard Transactions, Bank and Processor will automatically be added as parties to this Agreement.
    5. Assignment of Payments Due. Merchant acknowledges and agrees it will not assign to any third party any payments due to it under this Agreement, and all indebtedness arising from Transactions will be for bona fide sales of goods and services (or both) and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Merchant may sell and assign future American Express Transaction receivables to JustiFi, its affiliated entities and/or any other cash advance funding source that partners with JustiFi or its affiliated entities without consent of American Express.
    6. Excessive Activity. If Merchant experiences Excessive Activity in relation to Chargebacks and Retrieval Requests, in addition to Bank’s other remedies under this Agreement, Bank or JustiFi may do any one or more of the following: (i) review Merchant’s internal procedures relating to acceptance of Cards and notify Merchant of revised procedures that it should adopt that might reduce future disputes; (ii) notify Merchant of a new rate that will be charged to process Merchant’s disputes; (iii) require Merchant to replace any magnetic-stripe-only point of sale terminal or electronic cash register with an EMV chip-capable terminal, if required under the Payment Network Rules; (iv) establish a Reserve Account or increase the amount of reserves required; or (v) terminate the Agreement. Merchant understands that having Excessive Activity may result in assessments, fines, fees, and penalties by the Payment Networks. Merchant agrees to reimburse Bank immediately for any such assessments, fines, fees, and penalties imposed on Bank and any related loss, cost, or expense incurred by Bank.
    7. Merchant Authentication Credentials. You are responsible for ensuring your account information is kept confidential. When a change to your Merchant account is required, you will be required to present authentication prior to Bank’s or JustiFi’s acceptance of a requested change. Merchant shall be fully liable for any changes to its account after proper authentication is presented. Bank may request from Merchant additional information to further verify Merchant’s identity and may delay a change pending completion of such verification.
    8. End user Complaints. Merchant agrees to promptly respond to any complaints from end users communicated to Merchant, and to communicate such complaints and the information surrounding such complaints, to JustiFi.
    9. Use of Data. Merchant shall not sell (as that term is defined under Applicable Law) or disclose, use, or retain for any commercial purpose not expressly set forth in this Agreement or outside the business relationship between the parties, any Cardholder Data. Merchant acknowledges that breach of the restrictions on use or disclosure of any confidential information would result in immediate and irreparable harm to Bank, and money damages would be inadequate to compensate for that harm. Bank and PF Suppliers shall be entitled to equitable relief, in addition to all other available remedies, to redress any breach.
    10. Bank Use of Data. Bank and JustiFi may use Transaction Data that Bank and/or JustiFi collects in performing Services for you for the purpose of providing additional products and services to you, other merchants, or third parties. This includes collecting, using, and de-identifying Cardholder information, dates, amounts, and other Transaction Data to provide you with analytic products and services and using Transaction Data anonymized and aggregated with other merchants’ transaction data for internal purposes and to provide you, other merchants, and third parties with analytic products and services.
    11. Entire Agreement. This Agreement and the Order Form, including and together with any related Schedules, appendixes, attachments or exhibits hereto or thereto, constitutes the sole and entire agreement of the parties hereto with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understanding, agreements, representations, and warranties, both written and oral, regarding such subject matter.
    12. Notices. All notices, requests, consents, claims, demands, waivers and other communications required under this Agreement (each, a “Notice“) meust be inwriting and addressed to the other Party at its address, including email addresss, set forth in the Order Form (or, in the case of Notices to Merchant, to such other address that JustiFi has on file for Merchant). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid) or electronic mail. Except as otherwise provided in this Agreement, a Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, notice sent via electronic mail shall be deemed effective upon the send date of the electronic mail, and notice mailed shall be deemed effective on the third day following its placement in the mail addressed to the addressee.
    13. Severability. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be reasonably construed as if such provision is not contained in the Agreement.
    14. Amendments. JustiFi may modify all or any part of this Agreement, including any Schedule, appendix, attachments or exhibits hereto, from time to time, in which case it will provide Notice of such modified Agreement to Merchant. Merchant will be deemed to have agreed to any such amendment if Merchant continues to use the Services after five (5) business days following receipt of the Notice, and such modified Agreement will be effective as of such date or such later date provided in such Notice. Except as set forth in this Agreement, this Agreement may not be modified except in writing and signed by an authorized representative of each Party.
    15. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    16. Assignment. Merchant shall not assign, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of JustiFi (not to be unreasonably withheld). Any purported assignment or delegation in violation of this Section 22(p) shall be null and void. No assignment or delegation shall relieve Merchant of any of its obligations under this Agreement. JustiFi may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of JustiFi’s assets without Merchant’s consent. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
    17. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    18. No Third-Party Beneficiaries. This Agreement benefits solely the parties to this Agreement (including the Bank), and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
    19. Choice of Law. This Agreement and all related documents including all Schedules attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.
    20. Choice of Forum. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement, including all Schedules and other attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the state or federal courts in the State of Delaware. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the state or federal courts in the State of Delaware. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
    21. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING SCHEDULES, ADDENDUMS, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY SCHEDULES, ADDENDUMS, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
    22. Force Majeure. Neither party will be liable, or be deemed to have defaulted under or breached this Agreement, for any loss, failure or delay in performing its obligations under this Agreement to the extent resulting from any event or condition beyond such party’s reasonable control (except for any obligations of Merchant to make payments to JustiFi or Bank hereunder), including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, quarantine restriction, epidemic, internet service provider failures or delays, civil unrest, war or military hostilities, failure of equipment, failure of suppliers or vendors, loss or malfunction of computer hardware or software, or criminal acts of third parties (collectively, a “Force Majeure Event“). The impacted party will give Notice within 5 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The impacted party will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The impacted party will resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the impacted party’s failure or delay remains uncured for a period of 30 days following such written Notice, the other party may thereafter terminate this Agreement upon 10 days’ written notice.
23. Definitions. As used in this Agreement, the following terms are defined as follows:
    1. “3-D Secure” means a Visa-approved method for authentication of Electronic Commerce Transactions.
    2. “Accepted Terms Sheet” means the Payment Facilitator Terms Sheet attached to and incorporated by reference to the Payment Facilitator Application submitted by JustiFi and accepted by Bank, as modified from time to time in accordance with this Agreement.
    3. “Authentication Request” means a request for Cardholder authentication from a Merchant utilizing 3-D Secure to a Card Issuer.
    4. “Account Information Security Program” or “AISP” means Visa’s data security program as set forth at https://bm.visa.com/run-your-business/small-business/information-security/ais-program.htm.
    5. “ACH” means Automated Clearing House.
    6. “Affiliate” means another Entity that, directly or indirectly, (i) owns or controls such Entity or (ii) is under common ownership or Control with such Entity.
    7. “Applicable Law” means all applicable federal, state and local laws, statutes, ordinances and regulations and procedures, and all applicable orders, judgments, decisions, guidance, recommendations, rules, policies or guidelines adopted or issued by any regulatory authority or any competent court, including but not limited to those of the Federal Trade Commission, the Consumer Financial Protection Bureau, and the board of Governors of the Federal Reserve System, as they may be amended from time to time.
    8. “Application” means the Payment Facilitator Application submitted by JustiFi and accepted by Bank.
    9. “Authorization” means approval by, or on behalf of, the Issuer to validate a transaction. An Authorization indicates only the availability of the Cardholder’s Credit Limit or funds at the time the Authorization is requested.
    10. “AVS” means Address Verification Service.
    11. “Bank” means Silicon Valley Bank, a California banking corporation.
    12. “Bankruptcy Code” means Title 11 of the United States Code, as amended from time to time.
    13. “Batch” means a single Submission to Bank of a group of transactions (sales and Credits) for settlement. A Batch usually represents a day’s worth of transactions.
    14. “Beneficial Owner” means a person who has 25% or greater ownership of a legal entity.
    15. “Blocked Person” means (i) an individual, group, or entity owned or controlled by, or acting on behalf of, a sanctioned country, or (ii) an individual, group, or entity, such as terrorist or narcotics trafficker, designated under programs that are not country-specific whose assets are blocked and with whom United States persons are generally prohibited from doing business.
    16. “Business Day” means any day other than a Saturday, Sunday, or legal holiday on which the Federal Reserve Bank of San Francisco is open to the public for carrying on substantially all of its banking functions. Any other reference to “days” shall mean calendar days.
    17. “Card” means a payment device issued to a Cardholder, including a plastic card or electronic representation thereof, bearing a Mark of a Payment Network, which enables the Cardholder to make payments for goods or services from Entities that accept such Cards, initiate transfers of funds or withdraw cash; for purposes of this Agreement, Cards are limited to Cards bearing the Marks of a Payment Network that is supported by Bank, made available to Merchant by Bank and elected for acceptance by Merchant. A Card may be a Credit Card or Debit Card, including prepaid cards.
    18. “Cardholder” means the Entity to whom a Card has been issued and any authorized user of such Card, including the Entity that has entered into an agreement establishing a Card account with an Issuer.
    19. “Cardholder Data” means Transaction Data, Card account number and other Card information, deposit account information, information concerning a natural person which because of name, number, personal mark, or other identifier, can be used to identify that natural person in combination with any one or more of the following data: (i) social security number; (ii) driver’s license number or non-driver identification card number; (iii) mother’s maiden name, financial services account number or code, savings account number or code, checking account number or code, debit card number or code, automated teller machine number or code, electronic serial number or personal identification number (PIN); or (iv) any information subject to Gramm-Leach-Bliley Act, Fair Credit Reporting Act, and Fair and Accurate Credit Transactions Act and all Applicable Laws affecting the subject matter and their respective regulations or guidelines.
    20. “Card Not Present” or “CNP Sale/Transaction” means a transaction that occurs when the Card is not present at the point-of-sale, including Internet, mail-order, and telephone-order Card Transactions.
    21. “Card Transaction” means the acceptance of a Card or information embossed or recorded on the Magnetic Stripe or Chip on the Card for payment for goods sold and/or leased or services provided to Cardholders by Merchant and receipt of payment from Bank, whether the Transaction is approved, declined, or processed as a forced sale. The term “Transaction” also includes credits, errors, returns and adjustments.
    22. “Card Validation Code” means a three-digit value printed in the signature panel of most Cards and a four-digit value printed on the front of an American Express Card. Visa’s Card Validation Code is known as CVV2; Mastercard’s Card Validation Code is known as CVC2; the Card Validation Codes for Discover Network and American Express are known as Card Identification Numbers (CID).
    23. “Change of Control” means when Control of an Entity is transferred by any means to another Entity or person.
    24. “Charge” or “Charges” means the total price, including all applicable taxes and gratuities, for the purchase of goods or services at a merchant for which a Cardholder has signed a Sales Draft or otherwise indicated intent to pay with a Card.
    25. “Chargeback” means a Card Transaction (or disputed portion) that is returned to Bank by the Issuer pursuant to Payment Network Rules.
    26. “Chip” means an integrated microchip embedded on a Card containing cardholder and account information.
    27. “Clearing Record” means a record relating to a Card Transaction in the format necessary for Submission to a Payment Network for processing.
    28. “Client Accounts” means all Custodial Accounts, JustiFi Accounts, Reserve Accounts and Merchant Settlement Accounts maintained in connection with this Agreement.
    29. “Communications” means payment orders (as defined by the California Uniform Commercial Code), instructions, requests, automated clearing house entries, and other communications that request a Service or payment processing.
    30. “Confidential Information” means, notwithstanding anything to the contrary in this Agreement, each Party may have access to or receive disclosure of information relating to the other Party’s business, technology, marketing objectives and plans, or pricing and any other information, in any form, furnished or made available directly or indirectly by one Party to the other that is marked confidential, restricted or with a similar designation, or is otherwise reasonably understood to be considered confidential. Confidential Information does not include information that: (i) is or subsequently becomes publicly available (through no fault of the recipient); (ii) the recipient lawfully possesses before its disclosure; (iii) is independently developed without reliance on or use of the discloser’s Confidential Information; or (iv) is received from a third party that is not obligated to keep it confidential.
    31. “Control” means, with respect to an Entity, to hold directly, indirectly or beneficially the majority voting power in the Entity or the legal power or authority, by contract or otherwise, to direct the affairs or disposition of the Entity or its assets; with respect to an asset, the right to direct the use and disposition of such asset.
    32. “Controlling Person” means an individual with significant responsibility to control, manage, or direct a legal entity Merchant. For example, an executive officer or senior manager such as, a CEO, CFO, COO, General Partner, Managing Member, President, Vice President, or Treasurer or any individual who performs a similar function. This is a person with significant managerial control.
    33. “Credit” means a refund or price adjustment given for a previous purchase transaction.
    34. “Credit Card” means a Card enabling the Cardholder to buy goods or services on credit pursuant to the Cardholder’s account agreement with the Card Issuer.
    35. “Credit Limit” means the credit line set by the Issuer for the Cardholder’s Credit Card account.
    36. “Credit Voucher” means a document evidencing the return of merchandise by a Cardholder to a Merchant, or other refund or price adjustment made by the Merchant to the Cardholder, whether electronic, paper or other form, all of which must conform to Payment Network Rules and Applicable Law.
    37. “Custodial Account” means an account opened by Bank designated “for the benefit” of Merchant to evidence a custodial relationship, for use as the clearing account. “Merchant Settlement Account” means a commercial depository account in a bank acceptable to Bank, established by a Merchant such that Bank may debit and credit amounts for payments to the Merchant and from the Merchant to Bank.
    38. “Data Compromise Event” means any incident that exposes or reasonably should be suspected of having exposed Cardholder Data in an Entity’s possession or under its control, including Cardholder Data in the possession or under the control of an Entity’s third-party service providers, to unauthorized access, use or misappropriation.
    39. “Data Compromise Losses” means all expenses, claims, assessments, fines, losses, costs, assessments and penalties and Issuer reimbursements imposed by the Payment Networks against Bank related to or arising from a Data Compromise Event and all expenses and claims made by Issuers or third parties against Bank arising from a Data Compromise Event apart from any claim procedures administered by the Payment Networks.
    40. “Data Security Operating Policy (DSOP)” means American Express’ data security program as further described herein.
    41. “Debit Card” means a Card that accesses the Cardholder’s deposit or savings account or is a Prepaid Card. A Debit Card may be either a PIN Debit Card or a Non-PIN Debit Card.
    42. “Default Event” means a material breach of this Agreement by Merchant; fraud, misrepresentation, or intentional misconduct related to Merchant’s performance under this Agreement; excessive Chargebacks, irregular, or fraudulent payment transactions (based on Payment Network thresholds), or Merchant engages in business practices creating excessive risk for Cardholders or Bank; a material adverse change to Merchant’s financial condition (including the failure to pay any of its debts); failure by Merchant to provide notice of a material change in the nature of its business; failure by Merchant to disclose the third parties or systems it uses in connection with the transaction information or payment data processed under this Agreement; failure by Merchant to fund the Reserve Account when required under this Agreement; Merchant experiences a data compromise event or fails to comply with PCI-DSS or a material Payment Network requirements; Merchant materially changes its operations, products, services, or procedures for Card acceptance; Merchant fails to satisfy a review or audit conducted under this Agreement; Merchant sells substantially all of its assets, undergoes a Change of Control, merges, or effects a transfer of ownership or control without obtaining the prior consent of Bank; or a Payment Network or a governmental authority instructs Bank to limit, suspend its performance under, or terminate this Agreement.
    43. “Discover Network Information Security and Compliance (DISC)” means Discover Network’s data security program.
    44. “Electronic Commerce Transaction” means a Card Transaction conducted over the Internet or other electronic network.
    45. “EMV” means the global standard for chip-based payments.
    46. “Entity” means an individual, corporation, partnership, sole proprietorship, trust, association, or any other legally recognized entity or organization.
    47. “Excessive Activity” means the occurrence, during any monthly period, of Chargebacks or Retrieval Requests in excess of 0.50% of the number of Chargebacks compared to the number of Transactions.
    48. “Factoring” means the Submission of authorization requests and/or Sales Drafts by a merchant for Card sales or cash advances transacted by another business, a practice also referred to as “laundering” sales drafts. Factoring is prohibited.
    49. “Fees” means the various fees and charges listed on the Accepted Term Sheet.
    50. “Gross” when referred to in connection with transaction amounts or fees, refers to the total amount of Card sales, without set-off for any refunds or Credits.
    51. “High CV Payment Aggregator” means a payment aggregator with either (i) greater than USD $250,000,000 in American Express Transactions from its Merchants in a rolling twelve (12) month period or (ii) greater than USD $25,000,000 in American Express transactions from its Merchants in any three (3) consecutive months, wherein payment aggregator refers to JustiFi and Merchants refers to Merchant under this Agreement.
    52. “High CV Merchant” means a Merchant with either (i) greater than USD $1,000,000 in American Express Transactions in a rolling twelve (12) month period or (ii) greater than USD $100,000 in American Express transactions in any three (3) consecutive months.
    53. “ICA” means a numerical code assigned by Payment Networks to identify Payment Network participants for routing of transactions and allocation of responsibility for Transactions.
    54. “Issuer” means the financial institution that has issued a Card to a Cardholder.
    55. “Magnetic Stripe” means a stripe of magnetic information affixed to the back of a plastic Card. The Magnetic Stripe contains essential Cardholder and account information.
    56. “Magnetic Stripe Data” means information required or permitted by Payment Network Rules to be encoded on a Magnetic Stripe or Chip or replicated in a virtual, electronic or other form of a Card.
    57. “Marks” means names, logos, emblems, brands, service marks, trademarks, trade names, tag lines or other proprietary designations.
    58. “Media” means the documentation in whatever form, physical or electronic, of monetary transactions (i.e., Sales Drafts, Credit Vouchers, computer printouts, etc.).
    59. “Merchant” see Merchant.
    60. “Merchant Equipment” means any and all equipment a Merchant uses in connection with Card authorization, clearing, completing, settling, transmitting or other related processing, including, without limitation, all telecommunication lines and wireless connections and software, systems, point-of-sale terminals, card readers, merchandise and card scanners, printers, PIN pad devices and other hardware, whether owned by JustiFi, the Merchant, PF Suppliers or other Entities.
    61. “Non-Bank Cards” means Cards other than Cards bearing the Marks of Visa or Mastercard.
    62. “Non-PIN Debit Card” means a Debit Card that does not require a PIN for Cardholder authentication.
    63. “Non-Qualified Transactions” means any Card Transaction (i) submitted for processing more than 48 hours past the time the Authorization occurred; (ii) missing required data; and (iii) designated as such by the organization designated by Bank to settle Card Transactions with the Payment Networks.
    64. “OFAC” means the Office of Foreign Assets Control of the U.S. Treasury.
    65. “Operating Regulations” means all operating regulation, and/or all other rules, guidelines, policies and procedures of VISA, Mastercard, Discover, American Express and/or Other Networks, and all other applicable rules, regulations and requirements of Bank and Processor applicable to similarly situated Payment Facilitators, Bank, other banks, institutions, organizations, associations, or networks which govern or affect any services provided under this Agreement, including, but not limited to, the Payment Network Rules and those of the National Automated Clearing House Association (“Nacha”), as any or all of the foregoing may be amended and in effect from time to time.
    66. “OptBlue® Program®” means a program pursuant to which Bank and Processor provide Card acceptance services with respect to American Express Cards.
    67. “Other Networks” means Payment Networks other than American Express, Discover, Mastercard and Visa for which card acceptance Services are provided by Bank or Processor under this Agreement.
    68. “PA-DSS” means the Payment Application Data Security Standard as promulgated and revised from time to time by the PCI Security Standards Council, LLC, available at: https://www.pcisecuritystandards.org/.
    69. “PF Supplier” means any third party other than Processor used by JustiFi or a Merchant in connection with the Services received hereunder, including but not limited to JustiFi’s software providers, equipment providers, and/or third-party processors.
    70. “Payment Network” means any Entity formed to administer and promote Cards, including without limitation Mastercard Worldwide (“Mastercard”), Visa, Inc. (“Visa”), DFS Services LLC (“Discover Network”), American Express PF, Inc. (“American Express”) and any applicable PIN Debit Card networks.
    71. “Payment Network Marks” means Marks indicating acceptance of Cards as permitted by Payment Network Rules.
    72. “Payment Network Rules” means the rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Payment Network and related authorities, including without limitation, those of the PCI Security Standards Council, LLC, the National Automated Clearing House Association and the Quest Operating Rules.
    73. “PCI-DSS” means the Payment Card Industry Data Security Standards and Best Practices as promulgated and revised from time to time by the PCI Security Standards Council, LLC, available at: https://www.pcisecuritystandards.org/.
    74. “PIN” means a Personal Identification Number entered by the Cardholder to submit a PIN Debit Card transaction.
    75. “PIN Debit Card” means a Debit Card that requires transactions to be authenticated by the Cardholder’s entry of a PIN.
    76. “Point of Sale (POS) Terminal” means a device placed in a Merchant location which is connected to the Processor’s system via telephone lines or Internet connection and is designed to authorize, record and transmit settlement data by electronic means for all sales transactions with Processor.
    77. “Prepaid Card” means a Card that accesses the Cardholder’s funds in an account held by the Issuer into which funds have previously been paid, by the Cardholder or by another Entity.
    78. “Principal” means any individual or other Entity owning directly, indirectly, beneficially or otherwise controlling at least 25% of the equity or voting power of JustiFi or of a Merchant.
    79. “Principal Place of Business” means the fixed location at which JustiFi’s or a Merchant’s (as applicable) executive officers direct, control, and coordinate the Entity’s activities, regardless of its web site or server locations.
    80. “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure, transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
    81. “Processing Fees” means the fees and charges set forth on the Accepted Terms Sheet, and any separate schedule of fees as may be amended and supplemented by Bank from time to time.
    82. “Processor” means the Entity (other than the Bank) which provides certain services under the Agreement as a subcontractor of Bank. Processor may be changed by Bank.
    83. “Optional Services” means certain Services or products that JustiFi or a Merchant selects that are provided solely by Processor or by a third-party processor or provider (and not by Bank), as indicated in the Agreement.
    84. “Prohibited Entity” means an Entity either listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC, or otherwise with whom a Party or is prohibited by laws, regulations or executive orders administered by OFAC, including Executive Order No. 13224, from conducting transactions and/or dealings.
    85. “Qualified Security Assessor (QSA)” means a third-party service provider that meets the qualifications established by the Payment Card Industry Security Council for assessing a PF’s or merchant’s compliance with PCI-DSS and PA-DSS standards.
    86. “Qualified Transactions” means (i) Card Transactions in which the Card is swiped or chip is read; (ii) Visa telephone or mail Transactions with Address Verification and order number entered; or (iii) Card Transactions that are part of a special registered program approved by the Payment Networks.
    87. “Quasi-Cash Transaction” means a transaction representing a sale of items that are directly convertible to cash, including: (i) gaming chips; (ii) money orders; (iii) deposits; (iv) wire transfers; (v) travelers checks; (vi) prepaid cards or reloads thereof; (vii) foreign currency; or digital (crypto) currency.
    88. “Reserve Account” means an account established and funded at Bank’s request or on your behalf, pursuant to this Agreement.
    89. “Retrieval Request/Transaction Documentation Request” means a request for documentation related to a Card Transaction such as a copy of a Sales Draft or other Transaction source documents.
    90. “Sales Draft” means evidence of a purchase, rental or lease of goods or services by a Cardholder from, and other payments to, Merchant using a Card, including preauthorized orders and recurring transactions (unless the context requires otherwise); regardless of whether the form of such evidence is in paper or electronic form or otherwise, all of which must conform to Payment Network Rules and Applicable Law.
    91. “Schedules” means the attachments, addenda and other documents, including revisions thereto, which may be incorporated into and made part of this Agreement concurrently with or after the date of this Agreement.
    92. “Security Programs” means the data security requirements stated in the Payment Network Rules, including (1) the “Account Information Security Program (AISP)” – Visa’s data security program, (2) the “Site Data Protection (SDP)” – Mastercard’s data security program, (3) “Discover Network Information Security and Compliance (DISC)” – Discover Network’s data security program and (4) the “Data Security Operating Policy (DSOP)” – American Express’ data security program, each of which includes the PCI-DSS and validation requirements and additional network specific requirements.
    93. “Security Procedures” means the credentials, security codes, keys, personal identification numbers, template numbers, algorithms, procedures or other programs or keystrokes that are adopted for use to verify the authenticity of communications from JustiFi (to prevent unauthorized access to the services and related platforms). For example, a Security Procedure may be the combination of a password with specific user identification or other credential.
    94. “Self-Assessment Questionnaire (SAQ)” means a form of questionnaire prescribed by the Payment Card Industry Security Council for assessing a merchant’s compliance with PCI-DSS and PA-DSS standards to be completed by a Merchant and certified by a senior officer.
    95. “Services” means the services and products described herein and selected by JustiFi and a Merchant with respect to Card Transactions in the United States, including Optional Services.
    96. “Settlement Funds” means the funds relating to Card Transactions processed by Bank or Processor that are settled to Merchant.
    97. “Significant Owner” means a (i) Beneficial Owner and a (ii) Controlling Person.
    98. “Site Data Protection (SDP)” means Mastercard’s data security program as set forth at https://www.mastercard.com/sdp.
    99. “Submission” means the process of sending Batch deposits to Processor for processing.
    100. “Transaction” has the meaning provided in the definition of Card Transaction.
    101. “Transaction Data” means data collected as part of performing payment processing or other Card Transaction-related Merchant Services.
    102. “Transaction Receipt” means the paper or electronic record evidencing the purchase of goods or services by a Cardholder using a Card or Non-Bank Card.
    103. “Us,” “We,” and “Our” means the Bank.