TERMS OF SERVICE

1. The Services.
   1. JustiFi shall provide to Customer the software module(s) and services (collectively the “Services“) set out in the Order Form entered into between JustiFi and Customer. Certain of the Services may be subject to additional terms and conditions set forth in one or more addendums, including, but not limited to the addendums attached to this Agreement (each, an “Addendum“). Any additional Addendums not attached to this Agreement shall be deemed issued and accepted only if signed by the Parties. Services shall not include any Third-Party Services.
   2. Subject to the terms and conditions of the applicable Addendum, JustiFi grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited term, license to access and use the Services and the Documentation (as defined below) solely for Customer’s internal business purposes and any other purposes permitted under the applicable Addendum. JustiFi and its licensors and processors reserve all rights in and to the Services and Documentation not expressly granted to Customer. Customer’s use of the Services, including any Services providea an application programming interface, must be in accordance with the Documentation. To the extent the Documentation is updated by JustiFi, Customer agrees to promptly follow such updated Documentation in connection with its use of the Services. “Documentation” means any documentation, training manuals, user instructions and similar materials provided by JustiFi to Customer from time to time regarding the Services, as may be updated by JustiFi.
   3. Customer may not: (a) copy or otherwise reproduce or permit the copying or other reproduction of all or any part of the Services except as otherwise permitted herein or in any Addendum; (b) reverse engineer, decompile, disassemble, or create derived works based on the Services; (c) modify, adapt, translate into other programming forms or languages, or extend the Services to operate in other environments or on other platforms, except in accordance with this Agreement or any Addendum; or (d) allow access to the Services by other software products for any purpose without prior approval of JustiFi.
   4. Customer will provide, at Customer’s location, all hardware, software, and communications equipment necessary to permit Customer to access and use the Services. Customer will be responsible for providing all additional equipment and internet connectivity at its own expense.
   5. From time to time, JustiFi may make or offer updates to the Services, which will be governed by this Agreement and any applicable Addendum. JustiFi is not responsible for the performance of updates in connection with any unauthorized plugins installed by Customer. Except as provided on an applicable Addendum, JustiFi is not obligated to provide any updates or other modifications to the Services. Customer may purchase upgrades, which may include new features to the Services, for an additional fee not to exceed the then-current price of such upgrades offered by Justi
   6. From time to time, JustiFi may provide to Customer policies, procedures, documentation and specifications related to the Services (“JustiFi Policy Requirements”), all of which are incorporated by reference into this Agreement. Customer agrees that it shall comply with all requirements set forth in the JustiFi Policy Requirements, and any failure to do so constitutes a breach of this Agreement.
   7. Your account on the Services (your “Customer Account”) gives you access to certain services and functionality that JustiFi may establish and maintain from time to time and in JustFi’s sole discretion. If you open a Customer Account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized repntative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. You may never use another custoer’s Customer Account without permission, nor create multiple Customer Accounts for illegitimate purposes, as determined by us, in JustiFi’s sole discretion. When creating your Customer Account, you must provide accurate and complete information and you must keep this information up to date. By providing JustiFi with your email address, you consent to JustiFi using the email address to send you Services-related notices, including any notices required by law, in lieu of communication by postal mail. You must specify at least one administrator to manage your Customer Account (an “Administrator”). Administrators can add, remove, or manage additional Administrators and Customer Account users; request and manage use of Services; view transactions and run reports; provide or update Customer information; connect third-party services and other accounts to your Customer Account; request, access and use Services; and perform other tasks to manage your Customer Account. You are responsible for any actions or failure to act on the part of Administrators or users, or those using their credentials to access your Customer Account. You are solely responsible for the activity that occurs on your Customer Account, and you must keep your Account password secure. JustiFi encourages you to use “strong” passwords with your Customer Account. You must notify JustiFi immediately of any breach of security or unauthorized use of your Customer Account. JustiFi will not be liable for any losses caused by any unauthorized use of your Customer Account. JustiFi may suspend access to yor Customer Account if JustiFi believes that your Customer Account has been compromised. JustiFi may also use your email address to send you other messages, such as changes to features of the Services and special offers. If you do not want to receive such email messages, you may opt out of receiving such email messages by clicking on the “unsubscribe” link in the email message. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
2. JustiFi Obligations. JustiFi shall:
   1. Designate employees or contractors that it determines, in its sole discretion, to be capable of filling the following positions: (a) a primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “JustiFi Contract Manager”); and (b) a number of employees or contractors that it deems sufficient to perform the Services set out in each Addendum, (collectively, with the JustiFi Contract Manager, “JustiFi Representatives”).
   2. Make no changes in JustiFi Representatives except: (a) following notice to Customer; (b) upon the resignation, termination, death, or disability of an existing JustiFi Representative; or (c) at the reasonable request of Customer, in which case JustiFi shall use reasonable efforts to appoint a replacement at the earliest time it determines to be commercially viable.
   3. Maintain complete and accurate records relating to the provision of the Services under this Agreement. During the term of this Agreement, upon Customer’s written request, JustiFi shall allow Customer or Customer’s representative to inspect and make copies of such records in connection with the provision of the Services; provided that Customer gives JustiFi at least 10 business days advance written notice of the planned inspection, and any such inspection shall take place during regular business hours, and any such inspection shall occur no more than once per year.
   4. Comply with Applicable Law (including U.S. Privacy Laws) in its performance of its obligations under this Agreement.
   5. JustiFi has established and maintains a data privacy and information security program consistent with data privacy and information security standards developed by the PCI Security Standards Council, as amended from time to time.
3. Customer Obligations. Customer shall:
   1. Designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Customer Contract Manager”), with such designation to remain in force except: upon the resignation, termination, death, or disability of an existing Customer Contract Manager and thereafter, the Customer shall use reasonable efforts to appoint a replacement.
   2. Require that the Customer Contract Manager respond promptly to any reasonable requests from JustiFi for instructions, information, or approvals required by JustiFi to provide the Services.
   3. Cooperate with JustiFi in its performance of the Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable JustiFi to provide the Services, provided that any such access shall be subject to Customer’s reasonable rules, regulations and policies related to such access.
   4. Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in JustiFi’s provision of the Services.
   5. Comply with Applicable Law.
4. Fees and Expenses.
   1. In consideration of the provision of the Services by JustiFi and the rights granted to Customer under this Agreement, Customer shall pay the fees stated in the Order Form or the applicable Addendum (“Fees”). Payment to JustiFi of such Fees and the reimbursement of expenses pursuant to this Section 4 shall constitute payment in full for the provision of the applicable Services. Unless otherwise provided in the Order Form or applicable Addendum, said Fees will be payable upon receipt by Customer of an invoice from JustiFi.
   2. Customer shall reimburse JustiFi for all reasonable expenses incurred in accordance with the Services which have been previously disclosed to Customer, and all third-party costs associated with Customer’s use of the Services and pass-through costs, upon receipt by Customer of an invoice from JustiFi accompanied by receipts and reasonable supporting documentation.
   3. The Fees are exclusive of taxes. Each Party will be responsible for any taxes based on its income and receipts. As between the Parties, Customer is responsible for paying any national, state and local sales, use and excise taxes and other taxes and duties imposed in connection with Customer’s use of the Services, if any.
   4. Except for invoiced payments that Customer has successfully disputed, fees remaining unpaid for more than thirty (30) days from receipt of an invoice shall bear interest at the lesser of (a) the rate of one and one-half (1.5) percent per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse JustiFi for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which JustiFi does not waive by the exercise of any rights hereunder), JustiFi shall be entitled to suspend the provision of any Services if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
5. Intellectual Property. 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 or any Addendum grants Customer any right or title of ownership in or to the Services, or any component thereof. Customer 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. Customer will not remove or alter any proprietary or copyright notices, trademarks, or logos of Justify or its third-party processors. Customer retains ownership of its data and content that is processed or hosted by the Services, including graphics and text provided by Customer for inclusion.
6. 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“), non-public, proprietary, and confidential information of Disclosing Party (“Confidential Information“); 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 6; (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, regulations and rules (“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 6 only, Receiving Party’s group shall mean the Receiving Party’s employees, officers, directors, attorneys, accountants, and financial advisors.
7. Merchant Data.
   1. In connection with the Services and the provision of Third-Party Financial Products and Payment Processing Services, Customer may provide to JustiFi information relating to Customer’s customers (“Merchants”) who have a relationship with JustiFi in order for JustiFi to provide services to such Merchants, for the Bank to provide the Payment Processing Services to such Merchants and for Financial Partners to provide Third-Party Financial Products to such Merchants (such information, “Merchant Data”). Merchant Data also includes “Personal Information”, which means information that Merchants (directly or through Customer) discloses or for which JustiFi accesses in connection with services provided to Merchants, or information which JustiFi creates or collects on behalf of Merchants, in connection with this Agreement that (i) directly or indirectly identifies an individual, (ii) can be used to authenticate an individual and/or (iii) is defined as “personal informatio” or “personal data” under Applicable Laws (including U.S. Privacy Laws).
   2. JustiFi may share Merchant Data with Third-Party Providers in connection with the provision of the Payment Processing Services, Third-Party Financial Products or any other services provided to Merchant (or as otherwise permitted by the privacy policy by and between JustiFi and Merchant), and Customer shall ensure it has obtained all consents required by Applicable Law in order for JustiFi to do so. JustiFi’s privacy policy may be accessed here. JustiFi may aggregate, de-identify, or anonymize Merchant Data and use such aggregated, de-identified, or anonymized data, which shall no longer be considered Merchant Data or Personal Information, for its own research, analysis, and development purposes, including enhancements and improvements to the Services.
   3. Customer consents to the creation, collection, receipt, access, use, storage, disposal, disclosure and other processing of Merchant Data for the purpose of the provision of the Services.
   4. Customer will: (i) be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, disclosure or other processing of Merchant Data under its control or in its possession; (ii) comply with any Applicable Laws (including, as applicable, U.S. Privacy Laws) and use only secure methods, accordingly to accepted industry standards, when transferring or otherwise making available Merchant Data to JustiFi; and (iii) treat JustiFi’s Information Security Policy (as defined below) as Confidential Information.
   5. Customer represents and warrants that it has obtained all consents, approvals, authorizations of and provided all necessary notices to, Merchants or other parties in connection with the collection, sharing, utilization and other processing of Merchant Data and other information provided, whether directly or indirectly, to JustiFi for the purposes of provisioning of services contemplated under this Agreement (including Payment Processing Services and Third-Party Financial Products) to Merchant. Further, Customer agrees to provide true, accurate, current, and complete information to JustiFi and applicable Third-Party Providers. Customer shall not provide any information that is unlawful, invasive of another’s privacy, or that infringes the rights of others and if Customer determines the processing of Merchant Data under this Agreement does not or will not comply with Applicable Laws (including U.S. Privacy Laws), it will notify JustiFi with undue delay, and, JustiFi shall not be required to continue processing such Merchant Data.
8. Information Security.
   1. Each Party will employ reasonable security measures to protect Merchant Data in accordance with its information security policy and U.S. Privacy Laws (“Information Security Policy”). The Information Security Policy shall be consistent with accepted industry standards applicable for information security.
   2. If, in the course of its performance of the services contemplated under this Agreement, JustiFi has access to or will collect, access, use, store, dispose of, disclose or otherwise process Cardholder Data (as defined by PCI DSS) on Customer’s behalf, JustiFi will comply with the Payment Card Industry Data Security Standard (PCI DSS) requirements, as applicable. Customer will not obtain any Cardholder Data on behalf of Merchant or JustiFi.
9. Data Breach Procedures.
   1. Each Party maintains a cyber incident breach response plan in accordance with accepted industry standards (“Incident Response Plan”) and will implement the procedures required under such plan on the occurrence of a Data Breach. For purposes of this Agreement, “Data Breach” means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized access to or disclosure of, Merchant Data.
   2. Customer will notify JustiFi of a Data Breach as soon as reasonably practicable after Customer becomes aware of it but no more than 72 hours thereafter.
   3. Following Customer’s notification to JustiFi of a Data Breach, the Parties will coordinate with each other, as necessary, to investigate the Data Breach in accordance with JustiFi’s current Cyber Incident Response Plan.
10. Security Controls Review or Audit. At least annually, JustiFi will obtain security controls review or audit performed by an independent third party based on recognized industry standards. JustiFi may require Customer to obtain security controls review or audit.
11. U.S. Privacy Laws.
    1. ”U.S. Privacy Laws” shall mean, as applicable, California Consumer Privacy Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Utah Consumer Privacy Act, the Virginia Consumer Data Protection Act or similar U.S. state privacy laws. Personal Information is subject to such U.S. Privacy Laws, and the disclosure of such data would be a “sale” under U.S. Privacy Laws. Customer will be considered a “service provider” or “processor” under U.S. Privacy Laws and Customer shall:
       1. Process Merchant Data in compliance with U.S. Privacy Laws, including providing the same level of privacy protection as is required by U.S. Privacy Laws, and notify JustiFi if Customer makes a determination that it can no longer meet its obligations under U.S. Privacy Laws. Upon reasonable written notice that JustiFi reasonably believes Customer is using Merchant Data in violation of U.S. Privacy Laws or this Agreement, each Party shall take reasonable and appropriate steps to help ensure that Customer uses the Merchant Data in a manner consistent with JustiFi’s obligations under U.S. Privacy Laws and stop and remediate any unauthorized use of the Merchant Data.
       2. Not “sell” or “share” Merchant Data, nor retain, use or disclose the Merchant Data outside the direct business relationship with JustiFi or for any purpose other than for the specific purpose of performing the obligations hereunder, or as otherwise set out in this Agreement.
       3. Except to perform a business purpose or as otherwise permitted by U.S. Privacy Laws, not combine the Merchant Data received from, or on behalf of, JustiFi with any Personal Information that may be collected from Customer’s separate interactions with the individual(s) to whom the Merchant Data relates or from any other sources.
       4. Ensure that each employee or other person processing Merchant Data is subject to a duty of confidentiality with respect to such Merchant Data, and only engage subcontractors to process Merchant Data on its behalf after providing JustiFi with an opportunity to object and pursuant to a written contract that requires the subcontractor to materially comply with Customer’s obligations in this section.
       5. Taking into account the nature of the processing, reasonably assist JustiFi through appropriate technical and organizational measures in (A) responding to requests from individuals pursuant to their rights under U.S. Privacy Laws, including by providing, deleting or correcting the relevant Merchant Data, or by enabling JustiFi to do the same, (B) implementing reasonable security procedures and practices appropriate to the nature of the Merchant Data to protect the Merchant Data from unauthorized or illegal access, destruction, use, modification, or disclosure, and (C) entering into this Agreement.
       6. With JustiFi, and taking into account the context of the processing, implement appropriate technical and organizational measures designed to provide a level of security appropriate to the risk and establish a clear allocation of the responsibilities between them to implement such measures.
       7. Upon reasonable request of JustiFi, make available to JustiFi all information in its possession necessary to demonstrate Customer’s compliance with its obligations under U.S. Privacy Laws, including by providing reports of the reviews and audits referred to in this Agreement.
       8. At JustiFi written direction, delete or return Merchant Data to JustiFi as at the end of the provision of the Service, unless retention is required by Applicable Law (including U.S. Privacy Laws) or the Agreement.
12. Delays and Unavailability of Offerings. JustiFi cannot foresee technical or other difficulties that may arising during the course of performance of the services, which may result in the loss of data or other interruptions to the Services. JustiFi does not assume responsibility for any errors, delays, damages, or costs of any type arising out of Customer’s use of the Services.
13. Use of Plaid Services. As part of utilizing the Services, Customer consents to use a service offered by Plaid Inc. (“Plaid”). Customer acknowledges and agrees that Plaid’s Privacy Policy will govern Plaid’s use of information it collects about Customer or Merchant or that Customer provides to Plaid, and Customer expressly agrees to the terms and conditions of Plaid’s Privacy Policy and its Terms and Conditions, and Customer has obtained Merchant’s consent to such terms. Further Customer expressly grants Plaid the right, power, and authority to access and transmit Customer information as reasonably necessary for Plaid to provide its services to Customer or for Customer to utilize the Data Aggregation Services. To the extent Customer previously utilized account linking and aggregation services through JustiFi or its service providers, Customer expressly authorizes and directs JustiFi and Plaid to transmit any information or data (including any Personal Information) in connection with those services to Plaid so that Plaid and/or JustiFi can offer its respective services, including as set out in this Addendum.
14. Term, Termination, and Survival.
    1. This Agreement shall commence as of the Effective Date and shall continue thereafter for as long as an Addendum is in effect, unless sooner terminated pursuant to Section 14.2 or 14.3.
    2. Either Party may terminate this Agreement, in whole or in part, effective upon written notice to the other Party (the “Defaulting Party“) if the Defaulting Party: (a) breaches this Agreement, and the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach, or such breach is incapable of cure; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) days or is not dismissed or vacated within forty-five (45) days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Notwithstanding anything to the contrary in 2(a), JustiFi may terminate this Agreement, in whole or in part, before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder: (a) and such failure continues for thirty (30) days after Customer’s receipt of written notice of nonpayment; or (b) more than two times in any twelve (12) month period.
    4. The term of each Service subscription shall be as specified in the applicable Order Form. Except as otherwise set forth in the Order Form, subscriptions for each Service will automatically renew for successive one-year terms unless either Party provides written notice to the other at least ninety (90) days prior to the expiration of the then-current subscription term for such Service.
    5. The rights and obligations of the Parties set forth in this 14.5 and in Sections 4, 5, 6, 15, 16, 17, and 19 through 32, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
15. WARRANTY. ALL WARRANTIES, CONDITIONS, AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW, OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTIES AS TO QUALITY, PERFORMANCE, TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, AND USAGE OF TRADE, ARE EXCLUDED FROM THIS AGREEMENT AND ANY ADDENDUM TO THE FULLEST EXTENT PERMITTED BY LAW. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND CUSTOMER’S USE OF THE SERVICES ARE AT ITS OWN RISK. JUSTIFI DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR COMPLETELY SECURE OR ERROR-FREE.
16. LIMITATION OF LIABILITY. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 10 AND BREACH OF CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 6, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL JUSTIFI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
17. Indemnification.
    1. JustiFi will indemnify and defend Customer and its affiliates, directors, officers, employees, and agents with respect to any claims, liabilities, damages, and expenses, including reasonable attorney’s fees (“Liabilities”), arising out of any third-party claim that the Services as provided by JustiFi infringe on any intellectual property right of any third party. Notwithstanding the foregoing, JustiFi will have no indemnification obligation to the extent that any such third-party claim is based on or related to (a) any use of the Services in violation of this Agreement or any Addendum; (b) any use of the Services in conjunction with any third-party service, data, or materials not provided by JustiFi; or (c) any material or data provided by Customer. If Customer’s use of the Services becomes, or is likely to become, the subject of an infringement claim, JustiFi may, at its option and expense (i) procure the right for Customer to continue using the Services; (ii) replace or modify the infringing components of the Services with non-infringing components of substantially equivalent functionality; or (iii) if (i) and (ii) are not commercially feasible, terminate this Agreement and/or any applicable Addendum. The foregoing states the entire liability of JustiFi with respect to infringement claims, and Customer hereby expressly waives any other remedies for such claims.
    2. Customer will indemnify and defend JustiFi and its affiliates, directors, officers, employees, and agents with respect to any Liabilities, arising out of (a) any Customer content or data; (b) Customer’s breach of any law or regulation, including but not limited to the Payment Card Industry standards; or (c) a breach of any of Customer’s representations, warranties, obligations, covenants, or agreements contained in this Agreement or any Addendum.
18. Publicity. During the term of this Agreement, a Party may disclose in its advertising and marketing materials the logo of the other Party and a link to the other Party’s website for the purpose of advertising the relationship between the Parties.
19. Entire Agreement and Interpretation. The Order Form and this Agreement, including and together with any related Addendums, exhibits, schedules, attachments, and appendices hereto or thereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (i) this Agreement and any agreement or contract referred to herein shall mean such agreement as modified, amended, restated or supplemented from time to time; (ii) any law, rule or regulation referred to herein shall mean such law, rule or regulation as modified, amended or supplemented from time to time; (iii)any Person referred to herein shall be construed to include such Person’s successors and assigns (subject to any restrictions set forth herein or in any other applicable agreement); (iv) the terms defined in this Agreement have the meanings assigned to them in this Agreement and include the plural as well as the singular, and the use of any gender herein shall be deemed to include the other gender; (v) accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles; (vi) references herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other subdivisions without reference to a document are to Articles, Sections, Subsections, Paragraphs and other subdivisions of this Agreement; (vii) a reference to a Subsection without further reference to a Section is a reference to such Subsection as contained in the same Section in which the reference appears, and this rule shall also apply to Paragraphs and other subdivisions; (viii) the words “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular provision; (ix) the terms “month,” “quarter,” and “year” shall mean, respectively, calendar month, calendar quarter, and calendar year; (x) all references to “dollars” or “$” are to United States dollars; and (xi) the terms “include” or “including” shall mean without limitation by reason of enumeration.
20. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice“) must be in writing and addressed to the other Party at its address set forth in the Order Form (or to such other address that the receiving Party may designate from time to time in accordance with this Section). 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; and if the Party giving the Notice has complied with the requirements of this Section 13.
21. Severability. If any term or provision of this Agreement or any Addendum is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or Addendum, as applicable, or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement or Addendum, as applicable, to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
22. Amendments. JustiFi may modify all or any part of this Agreement or any Addendum from time to time, in which case JustiFi will update the “Last modified” date at the top of this Agreement. If JustiFi makes changes that are material, JustiFi will use reasonable efforts to notify Customer. The updated Agreement and/or Addendum will be effective as of the time of posting, or such later date as may be specified in the updated Agreement or JustiFi’s notice to you. Customer’s continued access or use of the Services after the modification have become effective will be deemed acceptance of the modified Agreement and/or Addendum. 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.
23. 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.
24. Assignment. Customer 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 17 shall be null and void. No assignment or delegation shall relieve Customer 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 Customer’s consent.
25. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
26. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for provision of the Services by JustiFi shall be under its own control, Customer being interested only in the results thereof. JustiFi shall be solely responsible for supervising, controlling, and directing the details and manner of the provision of the Services. Nothing in this Agreement shall give Customer the right to instruct, supervise, control, or direct the details and manner of the provision of the Services. 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.
27. Third-Party Providers. The Services may contain links to third-party materials that are not owned or controlled by JustiFi. JustiFi does not endorse or assume any responsibility for any such third-party services, information, materials, products, or services. JustiFi may reference, enable Customer to access, or promote (including through the Services) one or more services, products or promotions provided by a third party (“Third-Party Provider”) that utilizes, integrates with or is ancillary to the Services (“Third-Party Services”). If Customer accesses a third-party website, application or service, or Third-Party Service from the Services, Customer does so at your own risk, and Customer agrees that this Agreement and JustiFi’s Privacy Policy do not apply to Customer’s use of such Third-Party Services. Customer expressly relieves JustiFi from any and all liability arising from Customer’s use of any third-party websites, applications, services, or content. Customer may be required by JustiFi or Third-Party Provider to enter into terms and conditions governing access to and use of a Third-Party Services, whether attached hereto or to an Order Form or otherwise made available to Customer by JustiFi or such Third-Party Provider (“Third-Party Terms”). Access to or use of a Third-Party Service by Customer is subject to the terms of this Agreement and the applicable Third-Party Terms. In the event of any conflict between the Third-Party Terms and any other provision in this Agreement, the Third-Party Terms will prevail solely with respect to the applicable Third-Party Service. If a Third-Party Provider requires Customer to agree to changes to the relevant Third-Party Terms as a condition of Customer’s continued access to certain Third-Party Services, JustiFi will use commercially reasonable efforts to notify Customer in writing of the changes and their effective date, and Customer will not engage in further access to or use of the applicable Third-Party Services upon such effective date unless it has accepted such changes. Customer’s continued use of the applicable Third-Party Service after receipt of such notification and the effective date of such changes will constitute Customer’s acceptance of such changes. Customer acknowledges that the relevant Third-Party Provider is solely responsible for performance of its respective Third-Party Service(s) and, except as required by applicable privacy law or regulation, JustiFi has no liability for the acts or omissions of any Third-Party Provider.
28. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement 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.
29. Choice of Law. This Agreement and all related documents including all Addendums 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.
30. 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 Addendums 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.
31. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ADDENDUMS, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY ADDENDUMS, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
32. Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing the Services or any term of this Agreement or any Addendum (except for any obligations of Customer to make payments to JustiFi hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; and (g) other similar events beyond the reasonable control of the Impacted Party (“Force Majeure Events”). The Impacted Party shall give notice within five (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 shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall 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 thirty (30) days following written notice given by it under this Section 24, the other Party may thereafter terminate this Agreement upon ten (10) days’ written notice.

Third-Party Financial Products Addendum

1. Third Party Financial Products Referrals. JustiFi may make available third party financial products, such as insurance and lending programs and products to be offered to customers of End Users (“Third-Party Financial Products”), that Customer may promote to its commercial end-user customers (“End Users”), whether on its website or otherwise, subject to the terms herein. JustiFi may, at its sole and entire discretion, inform Customer what it deems appropriate and required to promote the Third-Party Financial Products. JustiFi or Financial Partner may modify the available Third-Party Financial Products from time to time and in JustiFi’s or Financial Partner’s respective sole discretion. Customer agrees to comply with JustiFi’s and Financial Partner’s reasonable policies and procedures for making referrals, as provided to Customer in writing from time to time.
2. Marketing. While Customer shall have the right to prepare and disseminate advertisements, tombstones, and other marketing materials promoting Third-Party Financial Products to End Users, all such materials require JustiFi’s prior written approval.
3. Compliance with Applicable Law. Notwithstanding anything in the Agreement to the contrary, Customer shall be solely responsible for complying with any and all Applicable Laws related to the use and the publishing and marketing of the Third-Party Financial Products and any solicitation of customers.
4. Collection of End-User Data. Customer consents to JustiFi collecting and disclosing information related to the disclosure, publishing, and purchase of Third-Party Financial Products by Customer’s End Users and consents to JustiFi using and disclosing such information to the Third-Party Provider of such Third-Party Financial Products (such party providing the Third-Party Financial Products, the “Financial Partner”) for the Financial Partner to perform and provide the Third-Party Financial Products.
5. Intellectual Property Rights. Customer shall not use the logo, service marks, registered trademarks, or other intellectual property rights, as the case may be, of Financial Partners without the prior written consent of JustiFi and/or such Financial Partner.
6. Referrals and Financial Partner Agreements. Customer may refer End Users to JustiFi for JustiFi to facilitate the offering of Third-Party Financial Products to such End Users from Financial Partner. Financial Partner shall exclusively evaluate each End User’s application to determine whether to approve or reject the such End User’s application for Third-Party Financial Products. Customer may not represent to End Users that they have been approved for Third-Party Financial Products, unless otherwise instructed by JustiFi in writing. Each approved End User must enter into an agreement with Financial Partner for Third-Party Financial Products (the “Financial Partner Agreement”). Any such End User that enters into the Financial Partner Agreement based on the introduction by Customer shall be deemed a “Merchant End User”. The pricing and fees charged for such Third-Party Financial Product (“End User Financial Product Fee”) shall be determined by Financial Partner or JustiFi. If required by JustiFi, Customer shall disclose (in a full and fair manner and in compliance with Applicable Law) to any End User prior marketing Third-Party Financial Product to such End User the End User Financial Product Fee. JustiFi may provide documentation and other instructions related to the disclosures of the End User Financial Product Fee to its End Users, which Customer agrees to follow in connection with its disclosures.
7. Fees. For each Merchant End User, JustiFi will pay to Customer the amounts set forth in the Order Form from revenue received by JustiFi from Financial Partner in connection with Merchant End User under the Financial Partner Agreement (the “Revenue Share”). JustiFi reserves the right to offset any of the following from the Revenue Share it owes to Customer: (A) any amounts owed by Customer or any Merchant End User to JustiFi or Financial Partner; (B) any revenue paid to Customer but that is uncollected from the Merchant End User or Financial Partner or that is refunded by JustiFi or Financial Partner to the Merchant End User; or (C) any fines, fees, penalties, or other losses incurred by JustiFi or Financial Partner due to the acts or omissions of Customer or any Merchant End User. In the event that Customer’s Revenue Share for a Merchant End User does not exceed $1,000 for three consecutive months, JustiFi may terminate the Revenue Share for such Merchant End User and no further payments will be paid with respect to such Merchant End User. In the event that Customer disputes any Revenue Share due or payable hereunder, Customer agrees to notify JustiFi in writing (email being sufficient) within sixty (60) days of the date it receives payment of the disputed Revenue Share; provided, however, Customer waives any claim against JustiFi regarding any payment that it fails to dispute within such sixty (60)-day period. Without limiting any rights under applicable law or as otherwise set forth hereunder or under this Agreement, Customer acknowledges and agrees that Revenue Share may be subject to offset from time to time (i) for any chargebacks or other liabilities suffered or reasonably expected to be suffered by JustiFi or Financial Partner; and (ii) to collect outstanding amounts due to JustiFi or Financial Partner in accordance this Agreement or under any Financial Partner Agreement. Each party is responsible for its own payment of all federal, state, and local taxes regarding commissions, residuals, bonuses or other forms of income with respect to the revenues it receives hereunder and shall be solely responsible for the withholding, reporting, and payment of any and all costs, expenses, penalties, fines and/or all taxes with respect to any employee, agent and/or independent contractor working on behalf of such party. JustiFi will pay the Revenue Share owed to Customer by credit to an account designated by Customer within thirty (30) days after the last day of the month in which the Revenue Share becomes due or, if Customer has not designated an account, to any transaction account JustiFi has on record for Customer.
8. Third-Party Services. Customer understands that Third-Party Financial Products are provided via, or in connection with, a Financial Partner that is a Third-Party Provider. Customer understands that the provision and performance of such Third-Party Financial Products is dependent on Third-Party Providers, and JustiFi has no control over such Third-Party Providers. JustiFi shall not be liable for the acts or omissions of any Third-Party Provider in connection with the Third-Party Financial Products, and Customer waives any claims you may have against JustiFi for failure of Third-Party Financial Products to perform as expected and for any failures or performance of Third-Party Providers or Third-Party Services. If Customer has a dispute relating to Third-Party Financial Products provided by Third-Party Providers, Customer releases JustiFi (and its affiliates and subsidiaries, and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, Customer expressly waives any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which Customer may know or suspect to exist in your favor at the time of agreeing to this release.
9. Additional Termination Rights. In addition to JustiFi’s rights to terminate in accordance with the Agreement, JustiFi may terminate this Addendum and the availability of any or all of the Third-Party Financial Products immediately in the event (a) Customer’s violation of Applicable Law or noncompliance with this Addendum; (b) Financial Partner requires termination of this Addendum; (c)excessive losses on the Third-Party Financial Products; (d) if the underlying company terminates its contract with an Financial Partner relating to a Third-Party Financial Product rendering any or all of the Third-Party Financial Products unavailable; or (e) the contract between a Financial Partner and JustiFi is terminated.
10. Delays and Unavailability of Programs. Financial Partners shall not be liable for any delay in or failure of its performance under this Addendum for the unavailability of the Third-Party Financial Products to the extent such unavailability is caused by a Force Majeure Event.
11. Limitation of Liability. JUSTIFI SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, OR END-USERS REGARDING ANY ACT OR FAILURE TO ACT BY A FINANCIAL PARTNER OR ANY WAY RELATED TO THE THIRD-PARTY FINANCIAL PRODUCTS.
12. Indemnity. Customer is responsible for its own actions or inactions, those of its officers, directors, shareholders, employees, and agents, including any third-party service providers. Customer will defend, indemnify, and hold JustiFi harmless from any loss, claim, liability, or expense, including, without limitation, attorneys’ fees and costs, arising out of or in connection with Customer’s failure to observe or comply with the provisions of this Addendum, including any actions or inactions, those of its officers, directors, shareholders, employees, and agents, including any third-party service providers. This indemnity shall survive the expiration or termination of this Addendum.

Payment Processing Support Service Addendum

1. Referral Services.
   1. Subject to the terms hereunder, Customer may promote Payment Processing Services whether on its website or otherwise. JustiFi may, at its sole and entire discretion, inform Customer what it deems appropriate and required to promote the Payment Processing Services, which may include requiring that the Payment Processing Services are integrated with the Customer’s website or mobile application available to Merchants.
   2. Customer has no authority to enter into any agreement on behalf of JustiFi with, nor to make any binding representation or warranty on behalf of JustiFi to, any third party.
   3. The form of any application for Payment Processing Services that may be provided to Prospective Merchants must be approved by JustiFi. Customer shall verify that each prospective Merchant conducts or intends to conduct a bona fide business operation. Each Prospect whose application for Payment Processing Services has been approved by JustiFi that subsequently decides to procure the Payment Processing Services and executes the Merchant Agreement, which may be found at https://justifi.tech/merchant-agreement (the “Merchant Agreement”), as a result of the exclusive efforts by Customer shall be deemed a “Merchant.” Customer shall not be a party to the Merchant Agreement; provided, however, Customer is responsible and liable for the obligations of Merchant, any Equipment (as defined in the Merchant Agreement) (if any), including any lease of Equipment (as defined in the Merchant Agreement), any lease rental payments related to such Equipment and any damage or other loss or liability related to the Equipment whether caused by Customer, Merchant or any other third party, and Transactions (as defined in the Merchant Agreement); provided, further, Merchant bears primary financial responsibility for Merchant Transactions, disputes, chargebacks and any liability, fines, penalties or losses related to Transactions, whether incurred by JustiFi or Bank (as defined in the Merchant Agreement) (collectively, “Transaction Losses”) and Customer bears ultimate financial responsibility for Transaction Losses. JustiFi may hold Customer responsible for Transaction Losses, but it may first request payment from Merchant (request may be made through any communication means, including electronic mail). Thereafter, Customer 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 obligations with respect to Merchant before requiring Customer to reimburse or pay JustiFi or Bank for any Transaction Losses. Customer shall ensure Merchant complies with Merchant Agreement. Customer shall ensure that each Prospect enters into the Merchant Agreement, in compliance with applicable law and to ensure the Merchant Agreement is enforceable against such Prospect.
   4. JustiFi may, in its sole and absolute discretion, accept or decline to enter into any agreement with the Merchant referred from time to time by the Customer (the “Prospect”). In addition, the acceptance by JustiFi of any Prospect is conditional upon execution of the Merchant Agreement between Prospect and JustiFi.
   5. Upon referring any Prospect to JustiFi, Customer shall communicate to JustiFi all the information that it has respecting the Prospect and Prospect’s business in order to assist JustiFi in making its decision whether to accept or decline such Prospect. Without limiting the generality of the foregoing, such information includes information respecting the Prospect’s solvency and the prior business relationships between the Prospect and other payment service providers. Customer shall also use reasonable efforts to assist JustiFi in collecting any information from a Prospect or Merchant.
   6. Where Customer submits to JustiFi an application for Payment Process Services, Customer represents and warrants that, to the best of its knowledge and following reasonable verification, the information contained in such application is true and complete in all material respects.
   7. Customer shall not refer to JustiFi any Prospect if Customer has any reason to believe that such Prospect is engaged in unlawful, dishonest or disreputable activities, or that the referral would constitute a breach of any contract to which the Prospect is a party.
   8. Nothing in this Addendum prohibits each party from entering into the same or similar agreements with any person.
   9. Customer agrees to comply with JustiFi’s reasonable policies and procedures for making referrals, as provided to Customer in writing from time to time.
   10. Subject for the sole purpose of promoting Payment Processing Services or JustiFi as further described herein, as the case may be, each party hereby grants to the other party the limited right to use the other party’s trademarks, logos and URLs provided by the other party and as may be amended by such other party from time to time (the “Customer Marks” or the “JustiFi Marks”, as the case may be). Each party may revoke this right at any time by giving the other party a written notice (including via email). Nothing hereunder grants Customer a right to use the Visa, MasterCard, Discover or American Express trademark on marketing materials, such as business cards, web sites or letterhead, and Customer may only use such trademarks to the extent it has authority to do so. Customer acknowledges that Visa, MasterCard, Discover and American Express are the sole and exclusive owners of their respective trademarks and agrees that it will not contest the ownership of such trademarks for any reason whatsoever. All JustiFi Marks and promotional and marketing materials related to the Payment Processing Services, including, but not limited to, any promotional and marketing materials being created pursuant to, or in connection with the services contemplated by, this Addendum, that are used in the promotion of JustiFi, or Payment Processing Services are subject to JustiFi’s review and prior written approval (“Marketing Materials”). All costs associated with the creation of such promotional and Marketing Materials are the sole responsibility of Customer. Customer acknowledges and agrees that the marketing of the Payment Processing Services may include the phrase “Powered by JustiFi” or such similar designation.
   11. Customer agrees not to associate Marketing Materials with content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable. Customer agrees not to send unsolicited electronic messages to multiple unrelated recipients (“Spamming”) in their promotional efforts described herein, or otherwise to engage in any other form of mass electronic communications prohibited by applicable law in connection with activities contemplated under this Addendum. In the course of soliciting prospective Merchants hereunder, Customer may not: (i) publish or employ or otherwise cooperate in any misleading or deceptive advertising material with regard to JustiFi or the Payment Processing Services, (ii) make no representation, warranties or guarantees to potential merchants with respect to the specification, features or capabilities of the Payment Processing Services that are inconsistent the Merchant Agreement and other documentation provided by JustiFi to Customer, (iii) avoid deceptive or misleading practices that are detrimental to JustiFi and (iv) not make any promise to a prospective Merchant that it will be approved prior to review and approval by JustiFi. The Payment Processing Services are governed by Payment Network Rules (as defined in the Merchant Agreement), and Customer shall comply with all applicable Payment Network Rules.
2. PCI Obligations.
   1. Customer agrees to comply at all times with the PCI Data Security Standards and requirements as defined by the Payment Card Industry Security Standards Council (“PCI”) and any amendment or modifications of such standards (the “PCI Standards”). Customer also acknowledges i) its responsibility regarding the security of any cardholder data in its possession; ii) the ownership by each payment card brand, JustiFi, each financial institution that issues a card to a cardholder (“Issuer”), and Merchant of cardholder data; and iii) that cardholder data can only be used for assistance of card brand, JustiFi, Issuer and Merchant in completing a Transaction (as defined in the Merchant Agreement), supporting a loyalty program, providing fraud control services, or for others uses required by law.
   2. Customer acknowledges that as part of its compliance with the PCI Standards, it may be required, by JustiFi or the PCI Standards, to agree to undergo certain security audits by PCI representatives or PCI approved third parties (“Third Party Auditors”). Customer acknowledges and agrees that the Third Party Auditors will have the right to audit Customer, at Customer’s expense, in order to ensure that the services offered by the Customer meet the PCI Standards, including but not limited to, Customer’s security procedures. Any audits of Customer by Third Party Auditors shall be conducted during normal business hours and in a manner that does not unduly disrupt the operations of Customer. Customer will be provided reasonable advance written notice of any such audit.
   3. In the event Customer experiences a security intrusion in which the security of cardholder information is suspected to have happened, or suspected of being threatened or breached (“Security Intrusion”), Customer will fully cooperate with JustiFi and the applicable card association(s) to conduct a thorough security review of such Security Intrusion. During the term of this Addendum and for a minimum period of twelve (12) months following the termination or expiration of this Addendum, Customer will fully cooperate with Customer, applicable card association(s), governmental agencies, and others in security intrusion investigations of suspected disclosure of cardholder data and violations of applicable statutes or card association operating rules and regulations.
3. Merchant Rate; Proceeds.
   1. Customer shall disclose (in a full and fair manner and in compliance with Applicable Law) to any Prospect prior to the execution of the Merchant Agreement the pricing and fees charged for Payment Processing Services and Equipment (and any transaction processed in connection therewith) (the “Merchant Rate”), as well as any changes to the Merchant Rate after the execution of the Merchant Agreement. Customer may set the Merchant Rate, and shall be responsible for ensuring such Merchant Rate is compliant with card network rules and Applicable Laws. Customer must also set the Merchant Rate in the JustiFi system. Customer agrees not to set the Merchant Rate below the Buy Rate (as defined below). Without modifying any other obligation of Customer hereunder, Customer must present the Merchant Rate using any form approved, and in a formatted required, by JustiFi. Without limiting the generality of the foregoing, Customer may not communicate to any Prospect or any other third party any prices or fees for Payment Processing Services other than the Merchant Rate. Notwithstanding the foregoing, JustiFi may require Customer to modify the Merchant Rate, and Customer shall promptly make any such modifications to the Merchant Rate required by JustiFi. Customer shall be solely responsible and liable for making all disclosures of the Merchant Rate to the Merchants, including any changes made thereto, in compliance with Applicable Law and taking all other steps that may be required by Applicable Law in connection thereto, including, if applicable, obtaining any Merchant’s consent to any changes to the Merchant Rate. JustiFi may provide documentation and other instructions related to the disclosures of the Merchant Rate to Merchants, which Customer agrees to follow in connection with its disclosures.
   2. JustiFi shall pay to Customer the Merchant Rate less the buy rate and fees indicated on the Order Form (“Buy Rate” and such resulting amount, the “Proceeds”) to Customer for a Merchant in accordance with the Order Form (unless otherwise agreed by the parties) as long as: (i) Customer is in material compliance with the terms hereof and this Addendum has not been terminated or expired; (ii) JustiFi received compensation from its partner bank or payment processor for such Merchant; and (iii) such Merchant is processing transactions in compliance with its Merchant Agreement. The Buy Rate may be updated by JustiFi from time to time in its sole discretion.
   1. JustiFi reserves the right to offset any of the following from the Proceeds it owes to Customer: (A) any amounts owed by Customer or any Merchant to JustiFi or Bank (as defined in the Merchant Agreement); (B) any revenue paid to Customer but that is uncollected from the Merchant or Bank (as defined in the Merchant Agreement) or that is refunded by JustiFi or Bank (as defined in the Merchant Agreement) to the Merchant; or (C) any fines, fees, penalties, or other losses incurred by JustiFi or Bank (as defined in the Merchant Agreement) due to the acts or omissions of Customer or any Merchant.
   2. In the event that Customer’s total fees do not exceed $1,000 for three consecutive months, JustiFi may terminate this Addendum and no further payments will be paid.
   3. In the event that Customer disputes any Proceeds due or payable hereunder, Customer agrees to notify JustiFi in writing (email being sufficient) within sixty (60) days of the date it receives payment of the disputed Proceeds; provided, however, Customer waives any claim against JustiFi regarding any payment that it fails to dispute within such sixty (60)-day period.
   4. JustiFi will have the right to change or add fees or charges assessed to Merchant or Customer that are the result of a new fees or charges, or increases thereto, that are passed-through to JustiFi from Bank (as defined in the Merchant Agreement) or payment card associations solely to the extent of the actual costs associated with such new or increase in fee or charges. Without limiting any rights under applicable law or as otherwise set forth hereunder or under this Agreement, Customer acknowledges and agrees that Proceeds may be subject to offset from time to time (i) for any chargebacks or other liabilities suffered or reasonably expected to be suffered by JustiFi or Bank (as defined in the Merchant Agreement); and (ii) to collect outstanding amounts due to JustiFi or Bank (as defined in the Merchant Agreement) in accordance this Agreement or under any Merchant Agreement. Each party is responsible for its own payment of all federal, state, and local taxes regarding commissions, residuals, bonuses or other forms of income with respect to the revenues it receives hereunder and shall be solely responsible for the withholding, reporting, and payment of any and all costs, expenses, penalties, fines and/or all taxes with respect to any employee, agent and/or independent contractor working on behalf of such party.
   3. JustiFi will pay the Proceeds owed to Customer by credit to an account designated by Customer within thirty (30) days after the last day of the month in which the Proceeds becomes due or, if Customer has not designated an account, to any transaction account JustiFi has on record for Customer.
4. Non-Interference; Assistance; Privacy.
   1. Non-interference. Customer agrees that it shall not directly or indirectly, alone or with the assistance of any other party, take any action to encourage or incite any Merchant to terminate any Merchant Agreement entered into between such Merchant and JustiFi.
   2. Assistance. Customer, upon JustiFi’s request and at Customer’s expense, will assist Customer with respect to investigating and addressing any concerns raised by a card brand or any member of a card brand in respect of this Addendum or any services provided by JustiFi to a Merchant and any potentially fraudulent or questionable activities in respect of any services provided by JustiFi or Customer to a Merchant.
   3. Privacy. Customer is and will continue to conduct its business in compliance with applicable privacy laws. With respect to any personal information that is provided by Customer to JustiFi, Customer has obtained all necessary rights, consents and permissions sufficient for Customer to use such personal information as contemplated by this Agreement.
5. Indemnification.Customer will indemnify and hold harmless JustiFi and its employees, directors, officers, shareholders, agents and representatives, for losses, damages, costs, or expenses that result from the Customer’s, Merchant’s or either such party’s third-party service providers’ gross negligence, willful misconduct, or breach of this Agreement or any Merchant Agreement.