Merchant Agreement

Last modified: July 9th, 2024
This Merchant Agreement (“Agreement”) is entered into by and between JustiFi Technologies, Inc. (“JustiFi”) (for itself and as agent of Silicon Valley Bank or such other bank or financial institution that JustiFi partners with from time to time (“Bank”), and the applicant who has submitted the merchant application (the “Merchant” or “you”). This Agreement is effective as of the date of acceptance by JustiFi (the “Effective Date”). By entering into the merchant application or otherwise consenting to this Agreement, Merchant agrees to comply with and be subject to the Rules. Merchant acknowledges that it has the sole responsibility to obtain the Rules and updates thereto. Any violations of the Rules by Merchant shall constitute a material breach of this 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.
    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 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.
    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:
      2. Visa AISP:
      3. Mastercard/SDP:
      4. Discover Networks DISC:
      5. American Express DSOP:
    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.
  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.
    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
    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:
    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:
    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
    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.

Attachment 1 to Merchant Agreement

ACH Origination Terms

  1. ACH Terms of Use. The following terms of use in this Attachment will govern the ACH origination services (“ACH Services“). Capitalized terms used herein without definition shall have the meanings provided in the NACHA Rules and the Agreement. In the event of inconsistency between a provision of Article 4A of the Uniform Commercial Code (the “UCC”) and this Attachment, the provisions of this Attachment shall prevail. Company agrees that its ability to submit or process Entries under this Agreement is subject to: (i) Bank’s and JustiFi’s approval, (ii) receipt by the Bank and JustiFi of all required and properly executed forms, authorizations (including authorizations for each Originator, Receiver and any captured by a Third-Party Sender), and such other information as Bank or JustiFi may reasonably request from time to time in connection with this Agreement and (iii) Company’s compliance with the terms of this Agreement, NACHA Rules and all Applicable Laws. Company certifies that it is not a Third-Party Sender and is the Originator of all Entries submitted hereunder. Capitalized terms used in the Agreement shall have the meanings set forth in the NACHA Rules except where otherwise specifically indicated in this Agreement. To access the ACH Services, we may require you to enter into an agreement with Bank. In the event of a conflict between the terms of this Attachment and any other terms of this Agreement, the terms of this Attachment shall control to the extent any conflict relates to ACH Services.
  2. Software Applications. All internet websites or applications that may be used to send and receive information and instructions or otherwise access the ACH Services are referred to as the “>Online Banking Channels.” The Online Banking Channels and the software, specifications, tapes, or other media, programs, procedures, and equipment (collectively the “Software”) used in connection with the ACH Services are and will remain the sole property of Bank and Bank’s third-party service provider and will not be modified or altered in any way or used for any other purpose. Merchant agrees to comply with the terms of any license made available to Merchant through the ACH Services. Merchant shall not (a) sell, assign transfer, license, or publish the Software or make copies of the Software; (b) disclose, display or otherwise make available the Software or copies of the Software to third parties without Bank’s written approval; or (c) reuse, reverse engineer, decompile, disassemble, modify, translate, create derivative works, reproduce, duplicate, or distribute the Software or content of the ACH Services, or make any attempt to discover any source code of any Software from which the ACH Services is comprised.
  3. Designation of Administrator. In order to originate ACH Entries, Company must designate at least one administrator (the “Administrator”). Administrator(s) shall be responsible for designating “Users” who Company authorizes to issue Entries on its behalf. For the purposes of this Attachment, the term User shall also include the Administrator. JustiFi and Bank shall be entitled to rely on the designations made by the Company’s Administrator(s) and shall not be responsible for matching the names of the Users designated by the Administrator(s) to names or titles listed in Company’s banking resolutions. Company agrees that any such online Entries shall comply with Security Procedures, and JustiFi shall provide notice if such Security Procedures are modified or changed.
  4. Submitting Entry Data. Merchant’s data, records, and Instructions that are delivered in an ACH file or as part of ACH Entries (“Entry Data“) must be in the form, have the content, and be delivered in conforming with NACHA Rules and any Entry Data requirements specified by JustiFi from time to time. In the event of any conflict between JustiFi’s Entry Data requirements and the NACHA Rules, JustiFi’s Entry Data requirements will govern. Merchant will deliver Entry Data in compliance with the Security Procedures. The total dollar amount of Entries transmitted by Merchant will not exceed the Transaction limit(s) established by Bank or JustiFi from time to time.
  5. Limits. Company agrees that JustiFi and Bank will not process an Overlimit Entry. JustiFi or Bank will suspend any Overlimit Entry submitted by Company and may, following its receipt of an Overlimit Entry, suspend an In-Process Entries to reduce Entries to be below the Entry Settlement Limit. Company acknowledges that any Overlimit Entry or other In-Process Entries suspended by JustiFi or Bank will not settle on their scheduled Settlement Date. If Company wishes to initiate an Entry that would cause the amount of In-Process Entries to exceed the Entry Settlement Limit, Company may submit to JustiFi its request to initiate an Entry that otherwise would be an Overlimit Entry. Company must submit its request at least 2 banking days prior to the date on which Company wishes to initiate the Entry that otherwise would be an Overlimit Entry. JustiFi or Bank may require from Company financial or other information in connection with consideration of the request. JustiFi and Bank may each grant or deny Company’s request at its sole discretion. In addition to the foregoing, JustiFi and Bank generally reserves the right to limit the nature and amount of the preauthorized debit/credit Entries processed under this Agreement or to refuse to process any debit/credit Entries under this Agreement if, in JustiFi’s or Bank’s good faith judgment (i) there is reasonable cause to believe that any Entry will be returned or will not settle in the ordinary course of the transaction for any reason, (ii) to do otherwise would violate any limit set by the applicable clearing house association or any governmental authority or agency to control payment system risk, or (iii) a preauthorized credit Entry or the return of a preauthorized debit Entry would create an overdraft of Company’s accounts. “Entry Settlement Limit” means the maximum aggregate amount of In-Process Entries permitted to be outstanding at any time, which amount shall be separately communicated to Company by JustiFi and Bank in writing from time to time. “In-Process Entries” means the aggregate dollar amount of all credit or debit Entries initiated by Company and in process on any date for which settlement has not occurred with respect to credit Entries, or the applicable period for the return of items has not expired with respect to debit Entries. “Overlimit Entry” means an Entry the amount of which would cause the aggregate amount of In-Process Entries to exceed the Entry Settlement Limit.
  6. Security Procedures.
    1. Agreement to Use Commercially Reasonable Security Procedures. JustiFi offers Security Procedures that apply to the ACH Services and payment orders, and Merchant’s use of the ACH Services constitutes Merchant’s acceptance of those Security Procedures as commercially reasonable for the type, size, frequency, and volume of Merchant’s payment orders and as a means of authenticating a Payment Order communicated to JustiFi or Bank. Merchant acknowledges that the Security Procedures are used to verify the authenticity of, and not to detect errors in, any Payment Order. Any Payment Order communicated by Merchant shall be effective as the funds transfer instruction or Payment Order of Merchant, and shall be enforceable against Merchant, whether or not authorized and regardless of the actual identity of the sender thereof, if such Payment Order is received in accordance with the applicable Security Procedures, and if such Payment Order is accepted in good faith. In addition, if any Payment Order was actually communicated or authorized by Merchant or Merchant otherwise benefited from such Payment Order (or resulting Entry), then Merchant will be obligated to pay JustiFi the amount of the related Entry without regard to whether JustiFi or Bank complied with the Security Procedures. JustiFi and its licensors may, in their discretion, use additional procedures to verify the authenticity of any Payment Order. Merchant agrees to implement any other reasonable authentication or Security Procedures established by JustiFi.
    2. Compliance with Security Procedures. If Merchant communicates any Payment Order (including any cancellation or amendment thereof) in a manner that varies from the Security Procedures, and if such Payment Order is accepted in good faith, then Merchant agrees to be bound by such Payment Order, whether or not authorized, and Merchant will be deemed to have refused the Security Procedures that JustiFi offers and recommends as commercially reasonable, and Merchant will be obligated to pay JustiFi the amount of such Entry. However, Bank does have an obligation to accept any Payment Order that is not communicated in compliance with the Security Procedures. Neither JustiFi or Bank shall be responsible for refusal to act upon any Payment Order received which does not comply with this Attachment, including where JustiFi’s or Bank’s reasonable efforts to verify the Payment Order in accordance with the Security Procedures have failed or where such action is delayed until verification can be obtained.
    3. Company agrees to keep all Security Procedures protected, secure, and strictly confidential and to provide or make available the same only to User. Company agrees to instruct each User not to disclose or provide any Security Procedures to any unauthorized person. Upon the request of JustiFi or Bank, Company shall designate a system administrator to whom JustiFi may distribute access credentials and with whom JustiFi and Bank may otherwise communicate regarding Security Procedures. Company’s system administrator shall have responsibility to distribute Security Procedures to User(s) and to ensure the proper implementation and use of the Security Procedures by User(s). Where Company has the ability to change or modify any access credentials from time to time (e.g., a password or PIN), Company agrees to change access credentials frequently in order to ensure the security of the access credentials. Company agrees to notify JustiFi and Bank immediately, according to notification procedures prescribed by JustiFi and Bank in the Security Procedures, if Company believes that any Security Procedures or access credentials has been stolen, compromised, or otherwise become known to persons other than User or if Company believes that any ACH transaction or activity is unauthorized or in error. In the event of any actual or threatened breach of security, JustiFi may issue Company a new access credential or establish new Security Procedures as soon as reasonably practicable, but neither JustiFi nor Bank shall be liable to Company or any third party for any delay in taking such actions.
    4. Company agrees to notify JustiFi immediately, according to notification procedures prescribed by JustiFi in the Security Procedures, if the authority of any Administrator shall change or be revoked. Company shall recover and return to JustiFi any access credentials in the possession of any User whose authority to have the access credentials has been revoked.
    5. Each JustiFi and Bank reserve the right to modify, amend, supplement, or cancel any or all Security Procedures, and/or to cancel or replace any access credentials, at any time and from time to time in JustiFi and Bank’s discretion. JustiFi will endeavor to give Company reasonable notice of any change in Security Procedures; provided that JustiFi may make any change in Security Procedures without advance notice to Company if JustiFi, in its judgment and discretion, believes such change to be necessary or desirable to protect the security of JustiFi and Bank’s systems and assets. Company’s implementation and use of any changed Security Procedures after JustiFi’s notice of any change in Security Procedures shall constitute Company’s agreement to the change and Company’s agreement that the applicable Security Procedures, as changed, are commercially reasonable and adequate for the purposes intended.
    6. Company is responsible for providing for and maintaining the physical, electronic, procedural, administrative, and technical security of data and systems in Company’s possession or under Company’s control. Without limiting the generality of the foregoing, Company specifically acknowledges and agrees that as part of the foregoing obligation Company shall comply with the provisions of Section 1.6 of the NACHA Rules, entitled “Security Requirements,” for the safeguarding of Protected Information, as that term is defined in the NACHA Rules. Neither JustiFi nor Bank is responsible for any computer viruses (including, without limitation, programs commonly referred to as “malware,” “keystroke loggers,” and/or “spyware”), problems or malfunctions resulting from any computer viruses, or any related problems that may be associated with the use of an online system or any ACH Services. Any material downloaded or otherwise obtained is obtained at Company’s own discretion and risk, and neither JustiFi nor Bank is responsible for any damage to Company’s computer or operating systems or for loss of data that results from the download of any such material, whether due to any computer virus or otherwise. Company is responsible for maintaining and applying anti-virus software, security patches, firewalls, and other security measures with respect to Company’s operating systems, and for protecting, securing, and backing up any data and information stored in or on Company’s operating systems. JustiFi and Bank are not responsible for any errors or failures resulting from defects in or malfunctions of any software installed on Company’s operating systems or accessed through an Internet connection. Company acknowledges and agrees that it is its responsibility to protect itself and to be vigilant against e-mail fraud and other internet frauds and schemes (including, without limitation, fraud commonly referred to as “phishing” and “pharming”). Company agrees to educate User, agents, and employees as to the risks of such fraud and to train such persons to avoid such risks. Company acknowledges that JustiFi and Bank will never contact Company by e-mail in order to ask for or to verify account numbers, access credentials, or any sensitive or confidential information. In the event Company receives an e-mail or other electronic communication that Company believes, or has reason to believe, is fraudulent, Company agree that neither Company, nor its User(s), agents, and employees shall respond to the e-mail, provide any information to the e-mail sender, click on any links in the e-mail, or otherwise comply with any instructions in the e-mail. Company agrees that neither JustiFi nor Bank is responsible for any losses, injuries, or harm incurred by Company as a result of any electronic, e-mail, or internet fraud.
    7. In the event of a breach of the Security Procedure, Company agrees to assist JustiFi and Bank in determining the manner and source of the breach. Such assistance shall include, but shall not be limited to, providing JustiFi and Bank or JustiFi and Bank’s agent access to Company’s hard drive, storage media and devices, systems and any other equipment or device that was used in breach of the Security Procedure. Company further agrees to provide to JustiFi and Bank any analysis of such equipment, device, or software or any report of such analysis performed by Company, Company’s agents, law enforcement agencies, or any other third party. Failure of Company to assist JustiFi or Bank shall be an admission by Company that the breach of the Security Procedure was caused by a person who obtained access to transmitting facilities of Company or who obtained information facilitating the breach of the Security Procedure from Company and not from a source controlled by JustiFi or Bank.
  7. Processing and Settlement of ACH Entries. Merchant will comply with and be subject to the NACHA Rules with respect to all Entries whether or not a particular Entry is distributed through the ACH network , except as otherwise expressly agreed to by JustiFi. Unless the context otherwise requires, the NACHA Rules will apply only to “On-Us Entries,” which are Entries where the Receiver’s account also resides at the Originating Depository Financial Institution (“ODFI“). Bank will act as an ODFI with respect to Entries.
    1. Standard Entry Class Codes. Standard Entry Class Codes (“SEC Codes”) are specified in Appendix Two (ACH Record Format Specifications) of the NACHA Rules. Merchant may not originate Entries using SEC Codes that have not been included in the enrollment forms and approved by JustiFi. For example, SEC Codes PPD, CCD, and CTX are allowed without the need for additional documentation, but TEL, WEB, or IAT require prior approval by Bank and JustiFi’s agreement to Additional Documentation. JustiFi may block unapproved use of a SEC Code.
    2. WEB Entries. Company shall NOT initiate any WEB Entries without JustiFi’s prior approval.> If approved by JustiFi, the following provisions apply to WEB Entries originated by Company: Company agrees it has performed or will perform an annual audit that satisfies the NACHA Rules before initiating a WEB Entry. Pursuant to NACHA Rules, Company will establish and implement commercially reasonable: (a) fraudulent transaction detection systems to screen debit WEB Entries that, at a minimum, can verify the account number to be debited on the first use and that can detect any subsequent changes to such account thereafter; (b) methods of authentication to verify the identity of Receivers of debit WEB Entries; (c) procedures to verify that the routing number used in the debit WEB Entry is valid; (d) security technology for communications between Originator and Receivers over the internet or wireless networks; and (e) each time Company submits to Bank or processes using the ACH Services a WEB Entry, in addition to its other representations and warranties under this Agreement, Company warrants that the WEB Entry was screened by its fraudulent transaction detection system and that Company has used commercially reasonable methods to authenticate and verify the Receiver’s identity and to verify that the account number used in the WEB Entry is valid. In accordance with Applicable Law, Company must maintain records such as logs from an internet ordering system as proof of each Receiver’s authorization. JustiFi from time to time may (without any obligation or duty to do so) require Company to make such records available for JustiFi’s review. Company understands a Single-Entry payment means a one- time transfer of funds initiated by an Originator in accordance with the Receiver’s authorization for a single ACH debit to the Receiver’s account. Recurring payments authorization means: (a) multiple entries based on an authorization provided by the consumer establishing a relationship with the Company for a specific type of activity, that are originated each time upon the specific instructions of the consumer or (b) an entry that has been set up to occur based on the Receiver’s authorization obtained via the Internet or a wireless network at regular intervals without any additional intervention of the consumer. Company shall obtain a consumer’s authorization prior to initiating a WEB debit Entry which shall meet the following requirements: (a) The consumer must be able to read the authorization language displayed on a computer screen or other visual display and it is suggested the Receiver be prompted to print and retain a copy and should be instructed to accept the terms of the authorization; (b) Company must be able to provide a hard copy of the authorization, if requested; (c) Company must prompt the Receiver to print the authorization and retain a copy; (d) Company must be able to provide the Receiver with a hard copy of the authorization if requested to do so; (e) Only the Receiver may authorize the WEB Entry, and not Company on behalf of the Receiver; and (f) The authentication method chosen must not only identify the Receiver but must demonstrate the consumer’s assent to the authorization. In addition to any other representation or warranty provided by Company under the terms of this Agreement, with each origination or transmission of a WEB Entry by Company, Company represents and warrants that it (i) employs commercially reasonable detection systems to minimize the risk of fraud related to payment Entries initiated over the internet and to verify the validity of routing numbers, (ii) uses commercially reasonable methods of authentication to verify the identity of the Receiver, (iii) uses commercially reasonable security technology that at a minimum is equivalent to 128-bit encryption technology, and (iv) where required by Applicable Law, conducts annual audits s to its security practices and procedures that include at a minimum, verification of adequate levels of (a) physical security to protect against theft, tampering or damage, (b) personnel and access controls to protect against theft, tampering or damage, (b) personnel and access controls to protect against unauthorized access and use and (c) network security to ensure secure capture, storage and distribution. Company’s use of any standard entry class codes other than WEB in order to avoid the increased scrutiny required for such transactions shall constitute a violation of applicable law and may result in Company’s immediate loss of ACH origination rights regardless of any termination notification period otherwise specified in this Agreement. Company shall conduct an annual audit to ensure that the financial information it obtains from Receivers is protected by security practices and procedures that include, at a minimum, adequate levels of: (a) Physical security to protect against theft, tampering, or damage; (b) Personnel and access controls to protect against unauthorized access and use; and (c) Network security to ensure secure capture, storage, and distribution. Company shall retain a reproducible copy of the Receiver’s authorization for each WEB Entry for two (2) years from the (y) Settlement Date of the Single WEB entry and (z) from the revocation of the authorization of a recurring WEB Entry (or any other longer period required by Applicable Law or NACHA Rules); and (x) and (b) shall provide copies of Receiver’s authorization upon the Bank’s request within seven (7) Business Days of receipt of the request.
    3. IAT Entries. Company shall NOT initiate any IAT Entries without JustiFi’s prior approval. If approved by JustiFi, the following provisions apply to IAT Entries originated by Company: (i) IAT Entries are transmitted by JustiFi and/or Bank in U.S. dollars and converted to the local currency for receipt in the foreign country at the exchange rate determined by JustiFi’s and/or Bank’s processor on the date determined by JustiFi’s and/or Bank’s processor. All risk of fluctuation in the applicable exchange rate is borne by Company and Company agrees and acknowledges that neither JustiFi nor Bank shall be liable to Company for any loss or charge incurred by Company as the result of the application of any foreign currency exchange criteria imposed by any institution or agency located outside the United States. In the event of a returned IAT Entry, consumer payments will be credited to Company at the originated U.S. dollar amount; corporate payments will be credited to Company at the exchange rate determined by JustiFi’s and/or Bank’s processor at the time of return. In the event of an error in an IAT Entry or duplicate Entries, Company acknowledges and agrees that Company shall be liable for any and all losses caused by and a direct or indirect result from the error or duplicate IAT Entry. Company shall originate all International ACH Transactions, as that term is defined in the NACHA Rules, with an IAT SEC code and Company hereby agrees to abide by all of the NACHA Rules related to IAT Entries. Company agrees that in the case of a non-Consumer Account, Company shall enter into an agreement with the Receiver of an IAT Entry (“IAT Receiver”) whereby the IAT Receiver agrees to abide by the NACHA Rules in effect from time to time. Company acknowledges that it has reviewed and understands the section of the NACHA Rules entitled (or otherwise dealing with) “NACHA Rules Exceptions for Outbound IAT Entries” and Company understands and agrees that laws, regulations, and NACHA Rules of the country in which the IAT Receiver is located shall govern the matters listed within that subsection. Company further acknowledges that Company understands how such laws, regulations and NACHA Rules differ from the NACHA Rules. Company hereby indemnifies JustiFi and Bank from and against any and all resulting claims, demands, losses, liabilities, or expenses, including attorneys’ fees and costs, resulting directly or indirectly from Company’s origination of an IAT Entry. Company agrees and acknowledges that any assistance by JustiFi or Bank does not in any manner obligate JustiFi or Bank for the accuracy or enforceability of the Entry in any country outside the United States. Company bears the risk of any loss caused by any delay, tax, cost, tariff, fee, or other charge incurred on account of the Entry in any country outside the United States. If the settlement of any IAT Entry involves clearing of the Entry in more than one country outside the United States, JustiFi and/or Bank shall be permitted to rely upon any advice or instruction received by JustiFi and/or Bank from the JustiFi and/or Bank or financial agency located in the first country outside the United States to which the Entry is directed; and IAT Entries must be authorized as provided in the NACHA Rules. The form and content of the authorization, including whether such authorization may be oral, electronic, or written, shall be governed by the laws and payment system NACHA Rules of the receiving country.
    4. Stale Dated Payments. A stale dated payment will be processed on the next possible effective date, even if it forces that Entry to be handled as a same-day item.
    5. File Rejection. An entire ACH file may be rejected if JustiFi or Bank have any question about its authenticity or any problems processing the file as submitted (for example, if there are insufficient funds in an account to cover processing all Entries in the file) or for any other reason.
    6. Merchant as Originator.
      1. Merchant assumes the responsibilities of an Originator under the Rules. If Originator fails to perform its obligations as an Originator under the NACHA Rules, Merchant will indemnify JustiFi and Bank from and against any and all any and all proceedings, claims, demands, causes of action, damages, fines, expenses (including reasonable attorneys’ fees and other legal expenses), liabilities, harm, or other losses that result directly or indirectly from the Originator’s failure to perform its obligations. Nothing in this subsection limits Merchant’s indemnification or other obligations under this Attachment or the NACHA Rules.
      2. Merchant authorizes JustiFi and Bank to originate Entries on behalf of Merchant to Receivers’ accounts.
      3. JustiFi may restrict Entries by impermissible SEC Codes or otherwise restrict Entries as set forth in this Attachment and the Agreement.
      4. Merchant agrees that it will not originate Entries that violate the laws of the United States (including the sanctions laws administered by the Office of Foreign Assets Control).
      5. Merchant authorizes JustiFi, Bank and their licensors or representatives to audit Merchant’s compliance with this Attachment, the Agreement and the NACHA Rules.
      6. Merchant agrees that JustiFi and Bank shall be permitted to terminate or suspend this Attachment and/or the Agreement for breach of the NACHA Rules or as required for JustiFi to comply with the NACHA Rules.
    7. Provisional Settlement. Merchant agrees that any payment to Merchant for any originated Debit Entry (as described in the NACHA Rules), returned Credit Entry (as described in the NACHA Rules), or Credit Reversal (as described in the NACHA Rules) is provisional until Bank has received final settlement for such Entry. Bank and JustiFi may delay availability of provisional funds at Bank’s and JustiFi’s discretion. If final settlement is not received, Merchant agrees to pay a refund of the amount credited and JustiFi or Bank may charge the Custodial Account and/or Reserve Account for the amount due. The Bank or JustiFi may refuse to permit the use of any amount credited for a Debit Entry or Credit Reversal if it is believed that there may not be sufficient funds in the Custodial Account or Reserve Account to cover chargeback or return of such Entry or Reversal.
    8. Rejection of Entries. Any Entry and/or Entry Data may be rejected at any time, either with or without cause, including nonpayment or if Bank or JustiFi has attempted but is unable to verify the authenticity of the Entry Data. Individual entries or complete files may be rejected. JustiFi will endeavor to notify Merchant of rejection no later than the second Business Day after the Entry would otherwise have been transmitted to the ACH Operator (or, in the case of an On-Bank Entry, after the Effective Entry Date). JustiFi will have no liability to Merchant by reason of the rejection of any Entry or file or any failure or delay in providing such notice.
    9. Cancellations, Amendment, or Reversal. Merchant has no right to cancel or amend an Entry after Bank has received it. Bank may use commercially reasonable efforts to act on a request for cancellation of an Entry prior to transmitting it to the ACH Operator (or, in the case of an On-Us Entry, prior to crediting a Receiver’s account). JustiFi may deliver Entry Data for reversing entries (“Reversals”) pursuant to the NACHA Rules, but Bank will not process any Reversal that does not comply with the NACHA Rules or would violate this Attachment or the Agreement. Neither JustiFi nor Bank will have any liability if any requested cancellations or Reversals are not affected.
    10. Returned Entries. JustiFi will notify Merchant of the receipt of a returned Entry from the ACH Operator no later than one Business Day after the settlement day of such receipt. Merchant has no right to request JustiFi to dishonor any returned Entry unless Merchant gives JustiFi such request in writing, together with any relevant information required under the NACHA Rules, and JustiFi receives the written request and information before 10:00 a.m. PST of the fifth Business Day following the settlement date of the returned Entry Notice by JustiFi of a returned Entry shall be effective when given.
  8. Notification of Changes. JustiFi will notify Merchant of all notifications of changes (“NOCs“) received by JustiFi or corrected NOCs created by Bank related to Entries transmitted by Merchant to JustiFi. JustiFi will do so no longer than two (2) Business Days after JustiFi’s receipt of the NOC. Merchant must make the changes specified in any NOC or corrected NOC: (a) within six (6) Business Days of receipt or prior to initiating another Entry to the Receiver’s account, whichever is later; or (b) as otherwise required in the NACHA Rules, if the NACHA Rules specify a different time for correction.
  9. Payment for Entries. Merchant agrees to pay JustiFi, in immediately available funds, an amount equal to the shortfall in the net amount of funds available from Transactions submitted pursuant to this Agreement compared to sum of all Credit Entries or Debit Reversals related to Entry Data delivered, at such time as JustiFi may from time to time designate. For the avoidance of doubt and notwithstanding anything to the contrary, Company agrees to pay JustiFi for all credit Entries issued by Company or User(s), or credit Entries otherwise made effective against Company. Company shall make payment at such time on the date of transmittal by JustiFi of such credit Entries as JustiFi, in its discretion, may determine (“Payment Date”), and the amount of each On-Us Entry at such time on the Effective Entry Date of such credit Entry as JustiFi, in its discretion, may determine. Company shall pay JustiFi for the amount of each debit Entry returned by a Receiving Depository Financial Institution (“RDFI”) or debit Entry dishonored by JustiFi or Bank. Payment shall be made by Company to JustiFi in any manner specified by JustiFi. Company shall maintain sufficient collected funds in Company’s account(s) at Bank to settle for the credit Entries on the Payment Date. In the event that no Company account has collected funds sufficient on the Payment Date to cover the total amount of all Entries to be paid on such Payment Date, JustiFi or Bank may process the Entries and the total amount of the insufficiency advanced by JustiFi or Bank on behalf of Company shall be immediately due and payable by Company to JustiFi and Bank (as applicable) without any further demand from JustiFi or Bank. If JustiFi elects to pay Company’s account in the overdraft on any one or more occasions, it shall not be considered a waiver of JustiFi’s rights to refuse to do so at any other time nor shall it be an agreement by JustiFi to pay other items in the overdraft. Company agrees that JustiFi may require Company to pre-fund an account designated by JustiFi so that sufficient funds are maintained on the date that Company transmits a file containing credit Entries to JustiFi and Bank. JustiFi shall determine whether pre-funding is required based on criteria established from time to time.
    1. Time for Funding. Funds are due no later than the date of transmittal of the related Entry Data or at such other time as JustiFi may have established. Funds will be deemed to be provided if the funds in the Custodial Account and the Reserve Account are sufficient to fund Entries on the date and at the time when funds are due, provided that sufficiency of funds available will be determined by JustiFi and Bank in their sole discretion taking into account contingent needs for funds posted to such Accounts.
    2. Funding Prior to Payments. JustiFi is not obligated to continue to process Entries without having first been paid by Merchant, and JustiFi is not required to give notice that JustiFi will no longer continue such action, regardless of whether JustiFi may have done so previously. Bank or JustiFi may use the Custodial Account and the Reserve Account for debiting or crediting with respect to all Entries (and any Checks in lieu of Entries) and related adjustments and charges, but JustiFi is authorized to charge any Account or withhold funds that would otherwise be due to JustiFi pursuant to this Agreement if the designated Account has insufficient funds to cover any amounts due to JustiFi by Merchant in connection with the ACH Services.
    3. Holds. JustiFi and/or Bank may place a hold on funds in a Client Account without prior notice or demand in an amount reasonably believed by JustiFi and/or Bank to be needed to cover possible Returns or other amounts JustiFi and/or Bank reasonably believes are due or with the passage of time may become due under this Agreement in connection with the ACH Services. If there are not sufficient available funds in the Client Account to cover obligations in connection with the ACH Services, Merchant agrees that the Entries may still be processed and debit any Client Account even if the result is to create an overdraft. Merchant agrees to immediately provide cover for any negative balance or overdraft in a Client Account. JustiFi and/or Bank may also set off against any amounts JustiFi or Bank owes to Merchant in order to obtain payment of obligations under this Agreement in connection with the ACH Services.
    4. Reserve Amounts and Holdback. JustiFi and Bank may from time to time establish minimum amounts to be funded by Merchant as reserve amounts in accordance with the Addendum. JustiFi and/or Bank may withhold and use any amounts due to Merchant to maintain any initial or later required reserve amounts.
  10. Reserve. From time to time, JustiFi shall evaluate Company’s transaction activity for the purpose of establishing averages for transaction frequency, amount, returns and adjustments. These evaluations will occur at least annually and may occur more frequently at JustiFi’s discretion. In connection with these evaluations, JustiFi reserves the right to require Company to establish reserves with JustiFi or Bank calculated by JustiFi to cover Company’s obligations to JustiFi or Bank arising from activities under this Agreement. Reserves may be expressed as a fixed dollar amount or as a “rolling reserve” calculated based on “rolling” averages determined by JustiFi’s periodic evaluations. The amount of reserves required by JustiFi, if any, will be communicated directly to Company from time to time. Company agrees to establish reserves as required by JustiFi within 5 banking days after receipt of a communication from JustiFi setting forth the amount of required reserves and the basis of calculation used to determine the amount of reserves. JustiFi may suspend ACH processing activity for Company if Company fails to establish the required amount of reserves within the time period specified by JustiFi in its communication to Company.
  11. Error Detection. Neither JustiFi nor Bank has an obligation to discover and shall not be liable to Company for errors made by Company, including but not limited to errors made in identifying the Receiver, or an Intermediary or RDFI or for errors in the amount of an Entry or for errors in Settlement Dates. JustiFi and Bank shall likewise have no duty to discover and shall not be liable for duplicate Entries issued by Company. Notwithstanding the foregoing, if the Company discovers that any Entry it has initiated was in error, it shall notify JustiFi of such error. In the event that Company make an error or issue a duplicate Entry, Company shall indemnify, defend all claims, and hold JustiFi and Bank harmless from any loss, damages, or expenses, including but not limited to attorney’s fees, incurred by JustiFi and Bank as result of the error or issuance of duplicate Entries.
  12. Prohibited Transactions. Company agrees not to use or attempt to use the ACH Services (a) to engage in any illegal purpose or activity or to violate any applicable law, rule or regulation, with the exception of cannabis-based transactions which arise from a state that has legalized its use and sale, (b) to breach any contract or agreement by which Company is bound, (c) to engage in any internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction, (d) to engage in any activity or business that would result in Company being or becoming a “money service business” as defined in the Bank Secrecy Act and its implementing regulations unless otherwise approved by the JustiFi, (e) to engage in any transaction or activity that is not specifically authorized and permitted by this Agreement, or (f) to originate or allow the origination of Entries for any person or entity designated as prohibited by JustiFi from time to time. Company acknowledges and agrees that neither JustiFi nor Bank has any obligation to monitor Company’s use of the ACH Services for transactions and activity that is impermissible or prohibited under the terms of this Agreement; provided, however, that JustiFi reserves the right to decline to execute any transaction or activity that JustiFi believes violates the terms of this Agreement.
  13. Compliance with Laws. Merchant agrees, when requested by JustiFi, to assist with obtaining from the Receiver an authorization to initiate Entries to a Receiver’s account that complies with Applicable Law. The Receiver’s account shall be a commercial account, which is not used for personal, family, or household purposes.
  14. Compliance with NACHA Rules. Merchant will be bound by and comply with the NACHA Rules as in effect from time to time. At any time upon request by JustiFi, Merchant will provide JustiFi with evidence and information regarding Receiver authorizations. Merchant acknowledges that it is responsible for providing JustiFi with all information required by the RDFI, including the reason for payment, if required. Merchant further acknowledges the Receiver account number and RDFI bank identification number that Merchant provides in connection with an Entry must be complete and accurate, and Merchant understands that the Entry and any transfer amount could be lost if the information is incorrect. Without limitation of the foregoing, Merchant acknowledges that pursuant to NACHA Rules, the RDFI’s payment of an Entry to the Receiver is provisional until receipt by the RDFI of final settlement for such Entry; Merchant specifically acknowledges that if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver account credited and Receiver will not be deemed paid by JustiFi or Bank.
  15. Merchant’s Representations, Warranties, and Covenants. Merchant represents, warrants, and agrees that:
    1. Each person shown as the Receiver on an Entry received by JustiFi has authorized the initiation of such Entry and the crediting or debiting of the Receiver’s account in the amount and on the Effective Entry Date shown on such Entry;
    2. Such authorization is operative at the time of transmittal and at the time of debiting or crediting the Receiver’s account;
    3. Entries transmitted to JustiFi are limited to the types of Entries that are allowed for Merchant under this Agreement; and
    4. 4. All Entries transmitted by Merchant are in compliance with Applicable Law.
    With respect to each and every Entry transmitted by Company, Company represents and warrants to JustiFi and Bank and agrees that (a) each person or entity shown as the Receiver on an Entry received by JustiFi from Company has authorized the initiation of such Entry and the crediting or debiting of its account in the amount and on the Effective Entry Date shown on such Entry, (b) such authorization is operative at the time of transmittal or crediting or debiting by JustiFi or Bank as provided herein, (c) Entries transmitted to JustiFi or Bank by Company are limited to those types of credit and debit Entries permitted in writing by JustiFi, (d) Company shall perform their obligations under this Agreement in accordance with all applicable laws, regulations, and orders, including, but not limited to, the sanctions laws, regulations, and orders administered by OFAC; laws, regulations, and orders administered by FinCEN; and any state laws, regulations, or orders applicable to the providers of ACH payment services, and (e) Company shall be bound by and comply with the provision of the NACHA Rules (among other provisions of the NACHA Rules) making payment of an Entry by the RDFI to the Receiver provisional until receipt by the RDFI of final settlement for such Entry. Company specifically acknowledges that it has received notice of the rule regarding provisional payment and of the fact that, if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver of the amount credited and Company shall not be deemed to have paid the Receiver the amount of the Entry. Company shall defend, indemnify, and hold harmless JustiFi and Bank, and its officers, directors, agents, and employees, from and against any and all actions, costs, claims, losses, damages, or expenses, including attorney’s fees and costs) resulting from or arising out of (aa) any breach of any of the foregoing warranties, representatives, or agreements, representations or warranties of the Company contained in this Agreement; or (bb) any act or omission of the Company or any other person acting on the Company’s behalf. NACHA, in its role of ensuring the safety, security, and viability of the ACH network has determined that certain single-use or limited-use consumer authorizations have the potential to increase risk in the ACH system and compromise system effectiveness by increasing the incidence of returned Entries. Therefore, to qualify as a Company of such Entries Company hereby warrants to JustiFi and Bank that for each such ACH Entry submitted for processing, Company has obtained all authorizations from the Receiver as required by the NACHA Rules, by Regulation E or other applicable law, and this Agreement. Company also makes the additional warranties to JustiFi and Bank that JustiFi and Bank makes to each RDFI and ACH Operator under the NACHA Rules for the respective SEC codes for Entries originated by Company. Company indemnifies and holds JustiFi and Bank harmless from any liability arising out of Company’s breach of these warranties.
  16. Inconsistency of Name and Account Number or RDFI Description. Merchant acknowledges and agrees that if an Entry describes the Receiver inconsistently by name and account number, payment of the Entry transmitted to the RDFI might be made by the RDFI (or by Bank, in the case of an On-Bank Entry) on the basis of the account number even if it identifies a person different from the named Receiver. If an Entry describes a financial institution inconsistently by name and account number, the identification number may be relied upon as the proper identification of the financial institution. Merchant’s obligation to pay the amount of the Entry is not excused in such circumstances.
  17. Data Retention. Merchant will retain data adequate to permit remaking of all Entries for ten (10) Business Days following the date of their transmittal and will provide that data to JustiFi upon request. Without limiting the generality of the foregoing, Merchant specifically agrees to be bound by and comply with all applicable provisions of the NACHA Rules regarding the retention of any document or any record, including without limitation, Merchant’s responsibilities to retain all items, source documents, and records of authorization in accordance with the NACHA Rules.
  18. Security Interest. To secure the payment and performance of Company’s obligations set forth herein, Company grants to Bank and JustiFi a security interest in and pledges and assigns to Bank and JustiFi all of Company’s right, title, and interest in the following described property, whether now owned or hereafter existing or acquired and wherever located: (a) All monies, instruments, savings, checking and other accounts of Company (excluding IRA, Keogh, trust accounts and other accounts subject to tax penalties if so assigned) that are now or in the future in Bank’s custody or control; (b) any other collateral described in any security instrument securing the obligations of Company to Bank or JustiFi under this Agreement or any other obligation of Company to Bank or JustiFi; and (c) all proceeds and products of the property as well as any replacements, accessions, substitutions, and additions to any of the above.
  19. Financial Information. JustiFi and Bank may from time-to-time request information from Company in order to evaluate a continuation of the ACH Service to be provided by JustiFi hereunder and/or adjustment of any limits set by this Agreement. Company agrees to provide the requested financial information immediately upon request by JustiFi, in the form required by JustiFi. Company authorizes JustiFi to investigate or reinvestigate at any time any information provided by Company in connection with this Agreement. Upon request by JustiFi, Company hereby authorizes JustiFi to enter Company’s business premises for the purpose of ensuring that Company is in compliance with this Agreement and Company specifically authorizes JustiFi to perform an audit and risk assessment of Company’s operational controls, risk management practices, staffing and the need for training and ongoing support, and information technology infrastructure. Company hereby acknowledges and agrees that JustiFi and Bank shall have the right to mandate specific internal controls at Company’s location(s) and Company shall comply with any such mandate. In addition, Company hereby agrees to allow JustiFi and Bank to review available reports of independent audits performed at the Company location related to information technology, the Service and any associated operational processes. Company agrees that if requested by JustiFi or Bank, Company will complete an assessment of Company’s operations, management, staff, systems, internal controls, training and risk management practices that would otherwise be reviewed by JustiFi and/or Bank in an audit of Company. If Company refuses to provide the requested financial information, or if JustiFi or Bank concludes, in its sole discretion, that the risk of Company is unacceptable, or if Company violates this Agreement or the NACHA Rules, or if Company refuses to give JustiFi or Bank access to Company’s premises, JustiFi or Bank may terminate the ACH Services and this Agreement according to the provisions hereof.
  20. Merchant Notification Obligations. Without limiting any other provision of this Attachment, Merchant will notify JustiFi immediately if Merchant discovers: (a) any error or discrepancy between Merchant’s records and the information JustiFi or Bank provides to Merchant about Merchant’s transactions; (b) unauthorized transactions involving any Merchant Account; (c) a breach in the confidentiality of Merchant’s access credentials or other Security Procedures; or (d) material problems related to the security or integrity of the ACH Services. Merchant must send JustiFi a written notice of any discrepancy or other problem, including a statement of the relevant facts, within a reasonable time (not to exceed two (2) Business Days from the date Merchant first discovers the problem or receives information reflecting the problem, whichever occurs first). If Merchant fails to notify JustiFi within two (2) Business Days, Merchant agrees that, in addition to any other limitations on JustiFi’s liability: (y) in the case of an erroneous funds transfer, Merchant will be liable for all losses up to the amount thereof (as well as any loss of interest) which result from Merchant’s failure to give JustiFi such notice or which might have been prevented by Merchant giving JustiFi such notice; and (z) in the case of an unauthorized funds transfer, JustiFi will not be liable for any loss of interest which results from Merchant’s failure to give JustiFi such notice or which might have been prevented by Merchant giving JustiFi such notice.
  21. Limitation of Liability. This limitation of liability is in addition to any limitations of Bank’s or JustiFi’s liability set forth in this Agreement.
  22. Amendments. In the event that performance of ACH Services under this Attachment would result in a violation of any present or future statute, regulation or governmental policy to which JustiFi or Bank is subject, then this Attachment shall be amended to the extent necessary to comply with such statute, regulation or policy. JustiFi may terminate this Attachment if it deems such action necessary or appropriate under the circumstances. Neither JustiFi nor Bank shall have any liability to the Company as a result of any such violation, amendment or termination. Any practices or course of dealings between JustiFi or Company or any procedures or operational alterations used by them, shall not constitute a modification of this Attachment or the NACHA Rules, nor shall they be construed as an amendment to this Attachment or the NACHA Rules.
  23. Cooperation in Loss Recovery Efforts. In the event of any damages for which JustiFi or Company may be liable to each other or to a third party pursuant to the ACH Services provided under this Agreement, Company will undertake reasonable efforts to cooperate with each other, as permitted by applicable law, in performing loss recovery efforts and in connection with any actions that the relevant party may be obligated to defend or elects to pursue against a third party.
  24. Company as Receiver. If Company is the Receiver of an Entry or other funds transfer, and JustiFi or Bank does not receive final settlement for any payment made to Company by JustiFi or Bank, Company acknowledges and agrees that Company is obligated to JustiFi and Bank for the amount of the payment order and JustiFi and Bank is authorized to charge Company’s account(s) for any amount paid to Company. If JustiFi or Bank credits Company’s account for an Entry or other funds transfer naming Company as the Receiver, such credit Entry to Company’s account is not acceptance of the funds transfer by JustiFi or Bank until one hour after the opening of business on the banking day after the credit Entry is made to the account. Notwithstanding the foregoing, JustiFi or Bank may make funds available to the Company at an earlier time at JustiFi’s or Bank’s option. Neither JustiFi nor Bank has any obligation to notify Company of receipt of a funds transfer naming Company as the Receiver even if payment for the funds transfer to Company is made by credit to Company’s account or the payment order directs payment to an account. Demand by Company for payment of a payment order for which JustiFi or Bank is obligated to pay Company must be made in writing and delivered to JustiFi in writing in accordance with Section 22 of the Agreement.

Attachment 2 to Merchant Agreement

Equipment Lease Addendum

This lease addendum (“Addendum”) supplements the Agreement and governs the terms by which you may lease certain point of sale terminals, computers, tablets, phones, printers and associated supplies, including inks, packaging, containers and carrier bags as set forth in the applicable invoice(s) from JustiFi for use with the Payment Processing Services, which shall be set forth in Order Form (the “Equipment“). JustiFi and you may be referred to herein collectively as the “Parties” or individually as a “Party.” This Addendum is incorporated by reference into the Agreement.
    The Parties agree that JustiFi shall lease to you Equipment, subject to the terms of this the Agreement. You understand that the Equipment order identified in the Order Form, including quantity, are final. In the event you request a change in order quantity, JustiFi may, in its sole and absolute discretion, adjust or remove any applicable discounts or complimentary products or services. Once you consent to the order for Equipment via the Order Form, it is non-cancellable, and your obligation to pay Rent (as defined below), and otherwise to perform its obligations under the Agreement is and shall be absolute and unconditional and shall not be affected by any circumstances whatsoever, including, any right of setoff, counterclaim, recoupment, deduction, defense or other right which you may have against JustiFi, the manufacturer or vendor of the Equipment (the “Suppliers“), or anyone else, for any reason whatsoever. You hereby represent and warrant to JustiFi that the hardware being leased to you hereunder will be used solely for commercial purposes, and not in any way for personal, family or household purposes.
    Each rental of Equipment is subject to a minimum rental term of 36 months from the Start Date (“Rental End Date“). Deactivation of the Equipment or other termination of a Rental Term for a rental Equipment prior to the end of the minimum period will be subject to a charge equal to the fees for the remainder of such minimum term. Reactivation of a Rental Term for a rental Equipment once deactivated is not possible. This provision shall survive the termination or expiration of this Agreement. For purposes hereof, “Rental Term” shall mean the period commencing upon the earlier of (i) JustiFi’s shipment of such rental Equipment and (ii) activation of the rental Equipment (the “Start Date“), and ending upon the earlier of (A) the date that JustiFi has completed the deactivation process for such Equipment pursuant to an Equipment deactivation request made by you in accordance with JustiFi’s standard deactivation procedures, or (B) the termination of this Agreement or the applicable supplemental terms for such rental Equipment (the “Rental Term“). You must return the Equipment to JustiFi by the Rental End Term (Equipment must be submitted to the carrier before 6:00 P.M. local time). Late fees shall accrue immediately after the Rental End Date. If Equipment is not returned by the fifth (5th) day after the expiration of the Rental End Date, Equipment will be deemed lost and the replacement charges set forth herein shall apply.
    1. Rent.
      You shall pay to JustiFi the rent installments as disclosed to you in the Order Form related to such Equipment] on a monthly basis without prior notice or demand, promptly as such amounts shall become due and owing and all other amounts payable pursuant to this Agreement (such installments and such other amounts, “Rent“). The first Rent payment is due the Effective Date and each monthly Rent payment thereafter shall be due on the first of the month, unless stated otherwise in the Order Form. If you prepay any Rent, the Rent will be applied to the next unpaid month’s Rent payment.
    2. Payments.
      You authorize JustiFi to charge to your card on file for all Rent payments then due. JustiFi may set off Rent payments due against any amounts owed to you and may also invoice you for payment of Rent, and you must make payment in accordance with the terms of the invoice. Invoices may be sent by e-mail to the e-mail address JustiFi has on file for you. Notwithstanding anything to the contrary, you will be responsible for all payments due hereunder, including Rent and any fees or penalties, at the time and in the manner specified in this Agreement. Without limiting any set-off right JustiFi may otherwise have, JustiFi may deduct Rent from any settlement or amounts owed to you under this Agreement.
    3. Late Charges.
      Timeliness of your payment and its other performance under this Agreement is of the essence. In the event you fail to timely pay any invoice, then JustiFi reserves the right to: (a) cancel this Agreement without notice and recover the Equipment at your sole cost; (b) charge you interest at a rate of 1.5% for each month or part thereof the invoice remains unpaid, calculated from the date of invoice, until paid in full; (c) charge you for any costs incurred in the recovery of any debts including all legal costs, including attorney’s fees; (d) charge you retail replacement costs of a current model new item of the same brand or similar quality brand of any Equipment not returned to JustiFi; (e) set off amounts due hereunder from amounts otherwise due to you by JustiFi under any other agreement, including settlement amounts; and (f) charge a late charge rate specified in the Order Form (the “Late Charge Rate“) and the amount in arrears for the period such amount remains unpaid, plus twenty five dollars ($25.00) per month for the costs and administrative charges incurred or otherwise allocable to such late payment; provided, however, that if such charges exceed the highest charges for late payments permitted by applicable law, then the Late Charge Rate shall be the highest such charges permitted by applicable law.
    4. Authorization.
      You understand and agree that you will provide a JustiFi credit card number (together with expiration date, billing zip and CVV code) and designated deposit account for security purposes and to cover Rent, charges for late return of Equipment, loss, theft or damage to Equipment, the return of Equipment in a locked state, etc., including all the charges owed under in this Agreement. You agree that JustiFi shall be authorized to charge your card and account on file for applicable late fees, replacement charges, unpaid invoices on or after their due date and that in the event you dispute any charges or invoices, regardless of causes, you shall not initiate a chargeback from your credit card JustiFi of account holder institution.
    You authorize JustiFi to make, at any time, any credit or business inquiries which it considers necessary to accept or review acceptance of this Agreement. Such inquiries shall include, but are not limited to, a credit and/or criminal check of your business, including your business’s proprietor, partners, principal owners, shareholders or officers. You represent that you have obtained the consent of your business’s proprietor, partners, principal owners, shareholders and officers for JustiFi to obtain credit reports and other reports from public bodies, any bank or financial institution or any credit bureau related to such Parties. You agree that JustiFi or any third Party that JustiFi retains for purposes of collection efforts may report to one or more credit reporting agencies if you fail to fulfill the terms of this Agreement. If requested to do so by JustiFi, you shall provide the written consent of any person for which an inquiry has been or is to be made if such person has not executed this Agreement and will provide any financial statements, income tax and business tax returns and other financial information as JustiFi may consider necessary to perform initial or periodic reviews of your financial stability and business practices.
    1. Delivery.
      The address to be used for delivery is the address designated in the applicable Order Form unless you notify JustiFi in writing of another address. You agree that such address is accurate and is a business or commercial address where you conduct your business. Unless otherwise agreed to by the Parties, all Equipment will be shipped by JustiFi or its Supplier to you and returned to JustiFi by you via a recognized commercial delivery service (“Delivery Service”), such as UPS or FedEx. All Equipment shipped to you via a Delivery Service will require a signature for release to you. If Delivery Service cannot obtain an authorized signature, and arrangements are made for a subsequent delivery, or for a pickup by you, the original Rental Term and fees shall nevertheless apply, and there shall be no credit to you for the delayed delivery. You will pay for all shipping and packaging costs associated with round-trip shipment. These costs will be charged as part of the initial rental fee and will neither be refunded nor credited even if an alternative method of return is utilized. Notwithstanding the foregoing, JustiFi reserves the right to arrange an alternate shipping method in an effort to fulfill the order in the event of extraordinary and/or unforeseeable circumstances, including, but not limited to inclement weather, unavailability of certain shipping methods, or acts of God. Additional charges applicable to such alternate shipment arrangements shall be charged to you without the requirement of additional notice to you. In the event of a delayed delivery of Equipment or an incomplete shipment caused directly by JustiFi, you shall be entitled to a refund of the pro rata rental fee associated with the missing (incomplete) Equipment or late delivered Equipment (delayed delivery), but only for the period while the delivery is incomplete or delayed.
    2. Inspection and Acceptance
      . Upon delivery, you shall inspect the Equipment. Unless you notify JustiFi within twenty-four (24) hours of delivery of the Equipment that the Equipment does not conform to the Agreement, the Equipment shall be deemed accepted by you. All expenses incurred in connection with JustiFi’s purchase of the Equipment (including shipment, delivery and installation) shall be your responsibility and shall be paid upon demand. If you shall, for reasonable cause, refuse to accept delivery of any item of the equipment, the Agreement for such Equipment shall be terminated with respect thereto but you will be financially responsible for any associated fees incurred by JustiFi by your refusal of shipment.
    3. Return.
      At the end of the Rental Term, you must promptly deliver the Equipment to JustiFi, complete and in the same order and condition as when delivered to You, reasonable wear and tear excepted. JustiFi will include a return label and the original packaging with the delivered Equipment. YOU MUST RETURN THE EQUIPMENT TO JUSTIFI USING THE JUSTIFI PROVIDED RETURN LABEL AND PACKAGING. If you are unable to locate the return label, you are required to request, in writing, a duplicate label from JustiFi. JustiFi reserves the right to charge you for the full replacement costs of the packaging/materials. You are responsible for providing the Equipment to the Delivery Service for return to JustiFi on the final day of the Rental Term and prior to the time of the final daily pickup at the Delivery Service location selected by you, so that the Equipment can be placed into transit by the Delivery Service on the final day of the Rental Term. You must obtain a receipt showing the date and time of submission from the Delivery Service. Any delay in providing the Equipment to the Delivery Service for return to JustiFi as set forth above will subject you to daily late charges, as set forth in the applicable Order Form. JustiFi shall not be responsible for and shall not be obligated to refund or credit any fees, in the event a shipment is delayed or does not arrive by the agreed upon arrival date due to Delivery Service negligence, weather, or acts of god. JustiFi’s only obligation is to ship on the date and by the method agreed upon by the Parties. The Parties agree that for orders requiring international shipment, JustiFi shall not be responsible for shipping delays caused by customs or carrier clearance or any taxes/duties or similar fees associated with international shipments. For customers requiring Saturday delivery in remote areas where the carrier does not guarantee Saturday delivery, JustiFi’s only obligation is to ship on the date and by the method agreed upon by the Parties. You shall pay JustiFi the reasonable costs of repairing or replacing any Equipment that is delivered damaged, broken or missing parts. If at the end of the Rental Term, you are not in default and JustiFi consents, you may return the Equipment to JustiFi as provided above.
    4. Failure to Timely Return; Holdover.
      JustiFi reserves the right, in its sole discretion, to extend the Rental Term until the Equipment is returned. JustiFi further reserves the right, in its sole discretion, to arrange for the recovery of Equipment at your sole cost and expense. Your Rent and other obligations, but none of your rights, will continue if you holdover notwithstanding the expiration of this rental agreement or termination of this Agreement (including any extension) until you have redelivered the Equipment to JustiFi. If a rental Equipment and all of its accessories are not returned within thirty days of the end of its Rental Term, JustiFi may charge you (i) JustiFi’s then current standard non-return fee for the rental Equipment, plus (ii) JustiFi’s then current standard price for any non-returned accessories. If, upon return of the rental Equipment, JustiFi determines that the Equipment requires repair that is not covered by the Equipment’s warranty (if applicable) or an applicable repair service, you will be required to pay for such repairs at Equipment’s standard fees. If the damage makes repair impractical or uneconomical (in JustiFi’s discretion), JustiFi may charge you its then-current list price for the Equipment. You agree that it shall not be entitled to any offset, refund or reduction of such charges if equipment is returned late or after being deemed lost.
    1. Restrictions.
      You are prohibited from altering or adding any cellular data plans or features to any Equipment without the prior written consent of JustiFi. You are prohibited from placing or installing any pass codes, locks, and/or any other restrictive mechanisms on Equipment. All Equipment and software provided through or under this Addendum shall only be used by you pursuant to the purposes set forth herein or otherwise instructed by JustiFi, and only in connection with receipt of Payment Processing Services. Any software included on the Equipment, whether it is proprietary or subject to licensing from third parties, may not be copied. The unauthorized use, downloading, installation, copying, or distribution of third-party copyrighted, trademarked, or patented material from the Internet is expressly prohibited. You further agree that the Equipment and software contained thereon shall not be used to obtain, distribute or disseminate content that could be considered discriminatory, offensive, obscene, threatening, harassing, intimidating, or disruptive to any other person; such content to include, without limitation, pornography, derogatory comments involving race, age, sex, national origin, disability, sexual orientation, religious or political beliefs, or any other comment that may be offensive to any person or the public. You shall protect Equipment from prohibited uses and shall be responsible for ensuring that third parties do not cause a violation of this clause by third-party users. You shall also report any prohibited uses it becomes aware of. In the event JustiFi becomes aware of any of the prohibited uses set forth in this section, JustiFi shall have the right to terminate the Agreement without refund of any charges.
    2. Upgrades.
      The Parties understand and agree that due to frequent upgrades to electronics and software, JustiFi has the right to deliver upgraded Equipment which may be different from the original Equipment you selected. You waive any right to notice regarding upgrade to the Equipment. The Parties understand and agree that Equipment is available in various colors and aesthetic schemes, although each has equivalent functionality, and JustiFi has the right to deliver Equipment in the color or colors and aesthetic schemes selected by JustiFi.
    3. Equipment Software.
      JustiFi does not determine or control what operating system or application software is used with the Equipment. As such, JustiFi does not warrant the correct or satisfactory operation of any operating system or application software used with the Equipment, and you shall not be entitled to a refund of any fees in the event the operating system or application software malfunctions or does not operate satisfactorily.
    4. Equipment Hardware.
      You are obligated to protect the Equipment and avoid any damage. You will maintain the Equipment in good operating condition, repair and appearance, and protect it from deterioration, other than normal wear and tear; use the Equipment in the regular course of business only, within its normal capacity, without abuse; comply with all laws, ordinances, regulations, requirements and rules regarding the use, maintenance and operation of the Equipment; and not make any modification, alteration or addition to the Equipment. You will not change the location of any unit of Equipment without providing JustiFi prior written notice of the new location. You shall not detach, reverse engineer, disassemble or decompile any Equipment, or otherwise remove any parts originally or from time to time attached to the Equipment. You shall not permit anyone other than JustiFi or its designated repair service to repair any damage to the Equipment. In the event of loss or damage of the Equipment, the rental charges shall continue until you have paid in full said costs for the Equipment, which amount shall be in addition to the rental charges paid.
    5. Disclaimer.
    6. Equipment Malfunctions and Repairs
      . In the event of an Equipment malfunction (for reasons other than misuse, accident or malicious damage or not due to any action or omission of you or any third party), then JustiFi will repair or replace the malfunctioning Equipment, at JustiFi’s facility, at no charge to you and JustiFi will refund the pro rata rental charge for malfunctioning Equipment while it is being repaired or replaced. If you choose not to return the Equipment to JustiFi for repair and chooses to itself repair the Equipment, then all repair costs are at your sole expense and you will not be entitled to the refund noted hereunder. In the case of malfunctions caused by accident, malicious damage or misuse or action or omission of you or any third party, the Equipment may only be repaired by JustiFi or its appointee and the cost thereof will be charged to you. JustiFi reserves the right to replace the Equipment with equivalent Equipment. In the case of malfunctions caused by accident, malicious damage or misuse or action or omission of you or any third party, if for any reason JustiFi repairs or replaces any Equipment, you will pay JustiFi for all costs that JustiFi incurs repairing or replacing the defective unit, plus any shipping or other similar charges. If JustiFi replaces any Equipment, JustiFi will cause to be shipped the replacement for the defective unit within two (2) business days after receiving your written notice of the occurrence and cause of the damage or defect of the unit, and as a condition to replacement, you agree to return the replaced unit to JustiFi within ten (10) days after receiving the replacement unit. If you fail to return any Equipment as required, JustiFi shall treat the unreturned Equipment as being leased on a month-to-month basis at the same monthly lease payment until returned. If JustiFi has not received the Equipment within thirty (30) days from the date the replacement Equipment was shipped, you shall be liable and pay for the estimated replacement value of the Equipment as determined by JustiFi in its sole discretion. Any replacement unit will upon delivery constitute Equipment for all purposes of this Agreement; and all replaced units received by JustiFi will no longer constitute Equipment for the purposes of this Agreement but only after JustiFi has had a reasonable opportunity to inspect and verify the Equipment return complies with the terms of this Agreement.
    You assume and shall bear the entire risk of loss, damage, or destruction of the rental Equipment and accessories from any use whatsoever from the date of delivery of the rental Equipment to your site until such rental Equipment and accessories are returned to JustiFi. No loss, damage or destruction will relieve you from the obligation to make payments hereunder or to comply with any other obligation under this Agreement. You must immediately notify JustiFi of any loss, damage, or destruction of a rental Equipment. You are responsible for any charges for repairs or replacements of rental Equipment for damages that are not covered by the warranty disclosed to you by JustiFi in writing (if any). You will insure the Equipment for its full replacement value against damage and liability. You assume the entire risk of loss, damage or destruction of the Equipment from any and every cause whatsoever during the Rental Term and until the Equipment is returned to JustiFi. If the Equipment is (i) lost, damaged, or destroyed; or (ii) unusable for any reason other than its design, manufacture, or manufacturer assembly, you will pay JustiFi to either (a) repair the item, returning it to its proper condition, if possible, (b) replace the item with a like item in good condition, the same utility and of equivalent value, or (c) if lost, pay to JustiFi by direct debit the estimated replacement value of the Equipment as determined by JustiFi in its sole and reasonable discretion. You will retain insurance coverage for the Equipment to cover any loss, theft or destruction of the Equipment.
    The Equipment, as well as all accessories provided with such rental Equipment, shall remain the property of JustiFi or the applicable lessor of the Equipment to JustiFi. You shall have no right, title, or interest therein except as a lessee under this Agreement. You shall keep all rental Equipment and accessories free and clear from all liens, including any direct or indirect charge, encumbrance, lien, security interest, legal process or claim against the rental Equipment and accessories. You may not assign, hypothecate, sublet, sell, transfer, permit the sale of or part with possession of all or any of the rental Equipment, accessories or interest in this Agreement, without JustiFi’s prior written consent. If you fail to pay any fees when due and fail to cure such failure within ten business days of written notice thereof, JustiFi may, at any time thereafter enter, with or without legal process, any premises where any rental Equipment may be, and repossess and remove such rental Equipment and accessories. You hereby waive any claim of trespass or right of action for damages by reason of such entry and repossession. In addition, you shall pay to JustiFi any actual additional expenses incurred by JustiFi in collection efforts. This Agreement is a “true lease” and not a security interest. You hereby grant to JustiFi a purchase money security interest in all rental Equipment and all accompanying accessories shipped to you, as security for the performance by you of all of your obligations arising under this Agreement. JustiFi is hereby authorized by you to cause this Agreement or any other statement or other instrument in respect of this Agreement showing the interest of JustiFi in the rental Equipment and accompanying accessories, including Uniform Commercial Code financing statements, to be filed and recorded, and you grant to JustiFi the right to execute your name thereto. You agree not to convey any interest in the Equipment or in this Agreement, and any attempted conveyance will be void at its inception.
    1. Your Indemnity
      . In addition to any indemnification obligations under the Agreement, to the fullest extent permitted by law, you shall, at your sole cost and expense, hold harmless and indemnify JustiFi, its affiliates, all holders of a legal or beneficial interest in JustiFi and all of its Suppliers, officers, directors, executives, managers, members, partners, owners, employees, agents, successors and assigns (collectively “JustiFi Indemnitees”) from and against all losses, damages, fines, costs, expenses or liability (including reasonable attorneys’ fees and all other costs of litigation) incurred in connection with any action, suit, demand, claim, investigation or proceeding, or any settlement thereof, which arises from or is based upon: (i) any personal injury, bodily injury or property damage whatsoever occurring in connection with the your use of the Equipment; (ii) any claim for breach of intellectual property rights directly or indirectly from use of Equipment by you; (iii) any loss or liability incurred by JustiFi resulting from possession, use or operation of the Equipment by you; (iv) any liability which JustiFi may incur by reason of the use of the Equipment for any purpose other than as stated by you to JustiFi; (v) any act by you resulting in a claim affecting JustiFi’s interest in or title to the Equipment and any action taken by JustiFi to protect such interest and title; (vi) any damages claimed or threatened by a third party due to your acts or omissions, including any negligent or intentional acts; (vii) your violation, breach or asserted violation or breach of any federal, state or local law, regulation or rule; or (viii) your infringement, violation or alleged infringement or violation of any mark, patent or copyright or any misuse of the trade secrets or other Confidential Information of any third party.
    2. Notice of Claims.
      You shall give JustiFi immediate notice of any such action, suit, proceeding, claim, demand, inquiry or investigation that may give rise to any risk to JustiFi. JustiFi has the right (but not the obligation) to retain counsel of its own choosing in connection the defense and/or settlement of any such action, suit, proceeding, claim, demand, inquiry or investigation. Should JustiFi elect to retain counsel, you shall acknowledge and agree that such an undertaking by JustiFi shall in no way diminish your obligation to indemnify the JustiFi Indemnitees and to hold them harmless, and for you to be represented by counsel of your own choosing with respect to any such action, suit, proceeding, claim, demand, inquiry or investigation in which you are named. JustiFi has the right to, at any time without notice, consent or agree to settlements or take such remedial or corrective actions as it deems expedient with respect to any action, suit, demand, claim, investigation or proceeding, in its sole judgment. If JustiFi exercises its rights under this Section to settle or take corrective or remedial action, causes any of your insurers to refuse to pay a third-party claim, all cause of action and legal remedies you might have against such insurer shall automatically be assigned to JustiFi without the need for any further action on either Party’s part. Under no circumstances shall JustiFi be required or obligated to seek coverage from third parties or otherwise mitigate losses in order to maintain a claim against you. The failure to pursue such remedy or mitigate such loss shall in no way reduce the amounts recoverable by JustiFi from you.
    3. Limitation of Liability.
      Neither JustiFi nor any of its affiliates nor any of their contractors, agents, employees and/or licensees are liable for any damage, injury or loss to any person or property arising from the possession, operation or use of the Equipment (including, but not limited to, lost time or data, loss of use, or any other damages resulting from breakdown or failure of Equipment, or from delays in replacement or repair of Equipment), or any other circumstances related to this Agreement and the carrying out of the services contained therein, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise. Additionally, JustiFi shall not be liable for damages that are remote or speculative, or that could not have reasonably foreseen. IN NO EVENT WILL JUSTIFI BE LIABLE TO YOU IN CONTRACT, TORT OR OTHERWISE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUSINESS INTERRUPTION OR LOST PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT. YOU AGREE THAT YOUR SOLE REMEDY UNDER THIS AGREEMENT IS THE RETURN OF RENT OR SALES PRICE PAID TO JUSTIFI FOR THE APPLIABLE RENTAL PERIOD.
  10. DATA.
    JustiFi is not responsible for service/data coverage for any Equipment. Data service/reception/coverage is your responsibility. No refund will be given for any issues of data service/reception/coverage during the Rental Term. JustiFi cannot guarantee or warrant the functionality, reliability of, or access to Wi-Fi access, data coverage or internet service(s) provided by third parties. You understand that JustiFi is not responsible for the quality or availability of internet connections and data access on premises owned or leased by a third party. In connection with the use of Equipment, you are responsible for all telecommunications and internet costs.
    1. Default. The following events are a “Default”: (a) You fail to pay to JustiFi any amount due under this Agreement within two (2) business days of the date it became due and following JustiFi’s notice to you, (b) you fail to perform any obligation under this Agreement or violates any term of this Agreement, (c) you file or have filed against it/him/her a petition under the Bankruptcy Code (11 U.S.C. 101 et seq.) or any other insolvency law, or (d) you convey or attempt to convey any interest in all or substantially all of your assets. Any waiver by JustiFi of one or more Defaults shall not constitute a waiver of any other Default or provision of this Agreement.
    2. Remedies. If a Default occurs, JustiFi may: (a) enforce performance of this Agreement or recover damages for any breach; (b) immediately and without notification to you, terminate this Agreement; (c) require you to return the Equipment in accordance with the terms of this Addendum or make it available to JustiFi for pick up; (d) recover from you (i) all amounts due under this Agreement as of the date of JustiFi’s demand, plus (ii) as liquidated damages (and not as a penalty) all remaining Rent, less any credits and less any discounts required by applicable law, plus (iii) if JustiFi does not recover the Equipment, the anticipated value of the Equipment as of the end of the Rental Term as determined by JustiFi; (e) recover from you (i) all reasonable costs and expenses (including attorneys’ fees and other legal costs) that JustiFi incurs enforcing this Agreement due to your Default and (ii) interest on any and all such amounts due under this Section 11 until such amounts are paid to JustiFi in full at an annual interest rate which is the lesser of (A) 18% or (B) the maximum such rate permitted by law and/or (f) exercise any other remedies available by law, equity or otherwise (including under the UCC).

Schedule A to Merchant Agreement

American Express OptBlue® Program

This Schedule A governs your participation in the OptBlue® Program, in which you may choose to participate in order to accept American Express® Cards if you meet certain eligibility requirements. If you elect to enroll in the American Express OptBlue Program (“OptBlue Program”), the following additional terms and conditions of this Schedule A shall apply.
OptBlue Program is provided to you by Processor and not Bank. The OptBlue Program and other matters contemplated under this Schedule A are subject to the terms and conditions of the Agreement, as applicable, except to the extent the terms of this Schedule A directly conflict with another provision of the Agreement, in which case the terms of this Schedule A will control. Capitalized terms used in this Schedule A shall have the meaning as defined in this Schedule A. Capitalized terms used in this Schedule A and not otherwise defined herein shall have the same meaning set forth in the Agreement.
You understand that you must meet certain eligibility requirements in order to participate in the OptBlue Program, including that you must be located in the fifty United States and have an estimated American Express charge volume of less than $1M per year. You further understand that if you currently or at any point in the future do not meet these eligibility requirements, please contact Bank and Bank will assist you in securing the appropriate arrangements with American Express. You understand that your continued acceptance of American Express Cards will at all times be subject to the discretion of Processor and American Express. Notwithstanding any other provision of the Agreement, including this OptBlue Addendum, Bank may terminate this Agreement immediately upon Bank’s receipt of instructions from Processor or American Express to discontinue providing Services to you or in connection with the OptBlue Program.
For the purposes of this Schedule, “Claim” means any claim (including initial claims, counterclaims, cross-claims, and third party claims, and any allegation of an entitlement to relief), dispute, or controversy that American Express has a right to join (or against American Express) arising from or relating to the OptBlue Program, or the relationship resulting from the OptBlue Program, whether based in contract, tort (including negligence, strict liability, fraud, or otherwise), or statutes, regulations, or any other theory.
  1. Card Acceptance. You may elect to accept other payment Card without also accepting American Express Cards.
  2. Arbitration.
    1. Arbitration Agreement for Claims Involving American Express. In the event that you or Bank are not able to resolve a Claim, this Section 2 explains how Claims may be resolved through arbitration. You or Bank or American Express may elect to resolve any Claim by binding individual arbitration. Claims will be decided by a neutral arbitrator. If arbitration is elected by any party to resolve a Claim, the parties understand and agree that neither you nor Bank nor American Express will have the right to litigate or have a jury trial on that Claim in court. Further, you, Bank, and American Express understand and agree that the parties will not have the right to participate in a class action or in a representative capacity or in a group of persons alleged to be similarly situated pertaining to any Claim subject to arbitration under this Agreement. Arbitrator’s decisions are final and binding, with very limited review by a court, and once confirmed by a court of competent jurisdiction, an arbitrator’s final decision on a Claim is generally enforceable as a court order. Other rights you, Bank, or American Express would have in court may also not be available in arbitration.
    2. Initiation of Arbitration. Claims may be referred to either JAMS or the American Arbitration Association (“AAA“), as selected by the party electing arbitration. Claims will be resolved pursuant to this Section 2 and the selected arbitration organization’s rules in effect when the Claim is filed, except where those rules conflict with this Agreement. Contact JAMS or AAA to begin an arbitration or for other information. Claims may be referred to another arbitration organization if all parties agree in writing, if American Express or Bank, on one hand, selects the organization and you, on the other hand, select the other within 30 days thereafter or if an arbitrator is appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA). Any arbitration hearing will take place in New York, NY.
    3. Limitations on Arbitration. If any party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. No Claim is to be arbitrated on a class or purported representative basis or on behalf of the general public or other persons allegedly similarly situated. The arbitrator’s authority is limited to Claims between you, us, and American Express. An arbitration award and any judgment confirming it will apply only to the specific case brought by you, us or American Express and cannot be used in any other case except to enforce the award as between you, us and American Express. This prohibition is intended to, and does, preclude you from participating in any action by any trade association or other organization against American Express. Notwithstanding any other provision in this Section 2, if any portion of these Limitations on Arbitration set forth in this Section 2 is found invalid or unenforceable, then the entire Section 2 (other than this sentence) will not apply, except that you, we, and American Express do not waive the right to appeal that decision.
    4. Previously Filed Claims/No Waiver. You, Bank, or American Express may elect to arbitrate any Claim that has been filed in court at any time before trial has begun or final judgment has been entered on the Claim. You, Bank, or American Express may choose to delay enforcing or to not exercise rights under this Section 2, including the right to elect to arbitrate a claim, without waiving the right to exercise or enforce those rights on any other occasion. For the avoidance of any confusion, and not to limit its scope, this Section 2 applies to any class-action lawsuit relating to the “Honor All Cards,” “nondiscrimination,” or “no steering” provisions of the American Express Merchant Regulations, or any similar provisions of any prior American Express Card acceptance agreement, that was filed against American Express prior to the effective date of the Agreement to the extent that such claims are not already subject to arbitration pursuant to a prior agreement between Merchant and American Express. e. Arbitrator’s Authority. The arbitrator will have the power and authority to award any relief that would have been available in court and that is authorized under this Agreement. The arbitrator has no power or authority to alter the Agreement or any of its separate provisions, including this Section 2.
    5. Split Proceedings for Equitable Relief. You, Bank, or American Express may seek equitable relief in aid of arbitration prior to arbitration on the merits if necessary to preserve the status quo pending completion of the arbitration. This Section 2 shall be enforced by any court of competent jurisdiction.
    6. Small Claims. American Express will not elect arbitration for any Claim you properly file in a small claims court so long as the Claim seeks individual relief only and is pending only in that court.
    7. Governing Law/ Arbitration Procedures/Entry of Judgment. This Section 2 is made pursuant to a transaction involving interstate commerce and is governed by the FAA. The arbitrator shall apply New York law and applicable statutes of limitations and honor claims of privilege recognized by law. The arbitrator shall apply the rules of the arbitration organization selected, as applicable to matters relating to evidence and discovery, not federal or any state rules of procedure or evidence, provided that any party may ask the arbitrator to expand discovery by making a written request, to which the other parties will have 15 days to respond before the arbitrator rules on the request. If your Claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the rules of the selected arbitration organization. At the timely request of a party, the arbitrator will provide a written opinion explaining his/her award. The arbitrator’s decision will be final and binding, except for any rights of appeal provided by the FAA. Judgment on an award rendered by the arbitrator may be entered in any state or federal court in the federal judicial district where your headquarters or your assets are located.
    8. Confidentiality. The arbitration proceeding and all information submitted, relating to or presented in connection with or during the proceeding, shall be deemed confidential information not to be disclosed to any Person not a party to the arbitration. All communications, whether written or oral, made in the course of or in connection with the Claim and its resolution, by or on behalf of any party or by the arbitrator or a mediator, including any arbitration award or judgment related thereto, are confidential and inadmissible for any purpose, including impeachment or estoppel, in any other litigation or proceeding; provided, however, that evidence shall not be rendered inadmissible or non- discoverable solely as a result of its use in the arbitration.
    9. Costs of Arbitration Proceedings. You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in court. American Express will be responsible for any additional arbitration fees. At your written request, American Express will consider in good faith making a temporary advance of your share of any arbitration fees or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
    10. Additional Arbitration Awards. If the arbitrator rules in your favor against American Express for an amount greater than any final settlement offer American Express made before arbitration, the arbitrator’s award will include: (1) any money to which you are entitled as determined by the arbitrator, but in no case less than $5,000; and (2) any reasonable attorneys’ fees, costs and expert and other witness fees incurred by you.
    11. Definitions. For purposes of this Section 2 only, (i) “American Express” includes its Affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables, and all agents, directors, and representatives of any of the foregoing, (ii) “You” includes your Affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables and all agents, directors, and representatives of any of the foregoing, and (iii) “Claim” means any allegation of an entitlement to relief, whether damages, injunctive or any other form of relief, against American Express or any other Person (including you or us) that American Express has the right to join, including any allegation involving a transaction using an American Express product or network or regarding an American Express policy or procedure.

Schedule B to Merchant Agreement

Visa Chargeback Auto Acceptance Response Service

The terms and conditions set forth in this Schedule B govern the provision of Visa Chargeback Auto Acceptance Response Service (the “Visa Response Service“). The Response Service is provided to you by Processor and not Bank. All Visa Card accepting Merchants will be automatically enrolled in the Visa Response Service.
All aspects of the Visa Response Service contemplated under this Schedule B are subject to the rest of the Agreement, as applicable, except to the extent the terms of this Schedule B directly conflict with another provision of the Agreement, in which case the terms of this Schedule B will control.
  1. Definitions. Capitalized terms used in this Schedule B shall have the meaning as defined in this Schedule B. Capitalized terms used in this Schedule B and not otherwise defined herein shall have the same meaning as set forth in the Agreement.
  2. Explanation of Service. Visa charges a fee (“Late Fee“) for any Chargeback request that does not receive a response within the applicable Visa-designated timeframe (“Response Deadline“). Merchants may respond to Chargeback requests by either accepting or challenging the Chargeback request.
    1. Visa Response Service Parameters. The Processor sets the parameters provided in this Section 2 for all Visa Card accepting Merchants. The Visa Response Service automatically responds to all Visa Chargebacks within 20 days when a Visa Card accepting Merchant response has not been received by the due date. A Chargeback request that the Service automatically accepts prior to the Response Deadline is referred to in this Addendum as an “Auto Accepted Request“.
    2. Processor Liability. Processor will not have liability or responsibility for any Late Fee that a Visa Merchant may incur in connection with an Auto Accepted Request. A Visa Card accepting Merchant that has incurred a Late Fee in connection with an Auto Accepted Request must resolve such Late Fee directly with Visa.
      1. Illustrative Example. Reasons that a Visa Card accepting Merchant might incur a Late Fee in connection with an Auto Accepted Request may include, but are not limited to, an instance where, for example, (A) Visa requires acceptance of a Chargeback request within 20 days of receipt of such Chargeback request, (B) there is a delay between when Visa receives the Chargeback request and when Visa sends that Chargeback request to the merchant, and (C) the consequence of that delay is that the merchant’s acceptance of the Chargeback request within 20 days of its receipt of the Chargeback request nevertheless exceeds 20 days after Visa’s receipt of the Chargeback request.
    3. For those Chargeback requests that the Visa Response Service automatically accepts, the Visa Card accepting Merchant will incur the loss of funds related to that Chargeback request and will incur all other applicable fees, including Chargeback fees, that it would have incurred had the Auto Acceptance Merchant manually accepted the Chargeback request.
  3. Fees. Fees applicable (if any) to the Visa Response Services will be payable in accordance with the pricing section of the Merchant Application as such may be modified by Bank from time to time.