Last modified November 17, 2022

These terms of service (the “General Terms”), to include all appendices attached hereto, including the Finix Payments, Inc. Application (“Application”), Privacy Policy (available at https://finix.com/terms-and-policies/privacy-policy), and Merchant Services Agreement for Sub-Merchants (collectively, the “Agreement”) govern the Sub-Merchant’s participation in the Services. The Sub-Merchant agrees to be bound by the terms and conditions of the Agreement, as may be updated from time to time, as evidenced either by clicking to submit the Application (for example, by clicking “Submit Application”) or by the transmission of a Transaction receipt or other evidence of a Transaction. Each Party agrees that the electronic signatures and equivalent indications of acceptance by the Parties executing this Agreement are intended to authenticate this Agreement on behalf of each respective signing Party, and shall have the same force and effect as manual signatures hereto. The parties to this Agreement shall be the Sub-Merchant as named in the Application that applies to participate in Transactions using Finix’s processing products (“Sub-Merchant,” “Merchant,” or “you”) and Finix Payments, Inc. with its principal place of business at 631 Howard Street, Ste. 100, San Francisco, CA 94105 (“Finix,” “we,” or “us”) each of which may be referred to individually as a “Party” or collectively as “Parties.” The effective date of this Agreement shall be the date Finix approves Sub- Merchant for participation in the Processing Services (“Effective Date”).

WHEREAS, Sub-Merchant and Finix are entering into the Agreement to set forth, among other things, terms and conditions under which Finix will provide to Sub-Merchant services that facilitate Sub-Merchant’s acceptance of card payments, e-check, and/or ACH payments for goods and services provided,or charitable donations received, and Finix as an agent for Sub-Merchant, may accept settlement payments from the Acquirer or other third parties on behalf of Sub-Merchant;

WHEREAS, Sub-Merchant has entered an agreement with a third-party service provider (“Platform Provider”) for use and access to Platform Provider’s online software-as-a-service platform (the “Platform”), and Platform Provider has also contracted with Finix to make Finix’s payment processing services, as described herein, available to Sub-Merchant through Sub-Merchant’s use of said Platform;

WHEREAS, Finix is party to an agreement with an Acquirer and a Bank under which Acquirer and Bank provide payment processing and Association sponsorship services to Finix on behalf of Sub-Merchant and other sub-merchants of Finix; and

WHEREAS, as a condition of providing services to Finix on behalf of Sub-Merchant, Acquirer and Bank require that Finix include certain terms and conditions in the Agreement relating to the payment processing services being provided to Sub-Merchant.

THEREFORE, Finix and Sub-Merchant hereby agree to the terms and conditions set forth herein.

On and subject to the terms and conditions hereof, Finix is: (i) acting in the capacity of a “Payment Service Provider” (under the Visa Rules) and a “Payment Facilitator” (under the MasterCard Rules) and will provide you card processing services as described herein; (ii) entering into this Agreement as an agent of the Acquirer, and (iii) will provide you with additional services as agreed by the Parties. Finix provides processing services with respect to credit card transactions including Visa U.S.A., Inc. (“Visa”), MasterCard Worldwide (“MasterCard”), DFS Services LLC (“Discover Network”), American Express, JCB, Discover, and Diners Club (collectively, the “Associations”), as well as e-check, ACH, and any other transactions as decided by Finix. The National Automated Clearing House Association, which governs ACH Transactions, shall be included in the definition of Association. You will honor a card by accepting it for payment. You will not engage in any acceptance practice or procedure that discriminates against, or discourages the use of, any particular card type elected by you and approved by us, in favor of any competing card brand also elected and approved. You understand and agree that you are expressly prohibited from presenting sales transactions for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities, and that your ability to impose surcharges for acceptance of payment cards is limited by the Operating Rules and Applicable Laws.For all Cards issued by U.S. Issuers, you will honor all cards within the card types you accept in accordance with this Agreement. For example, if you accept Visa credit cards, you will submit payments from Visa-branded credit card Cardholders without regard to whether the credit card is a Visa-branded rewards credit card or Visa-branded business purpose credit card. You acknowledge that (i) no party will acquire any right, title, or interest in or to the marks of any Associations, (ii) the Associations are the sole and exclusive owners of their marks, (iii) you will not contest the ownership of the Association’s marks, and (iv) that any Association may prohibit you from using their marks (and you will immediately comply with such prohibition). You will not assign to any third party any of the rights to use the marks of any Associations, and the Associations may use information obtained in the Application to monitor you in connection with Card marketing and administrative purposes.

1. DEFINITIONS. For the purposes of the General Terms, the definitions contained in Appendix I apply to capitalized words contained within the Agreement unless otherwise specified within the Agreement.


2. SERVICES AND PRIORITY. Subject to the terms and conditions of the Agreement, the Parties will provide those Services for which they are respectively responsible as set forth in the Agreement. In the event that terms and conditions described within the appendices differ from those indicated within the General Terms, the terms and conditions contained within the Appendices shall prevail over any conflicting terms and conditions in the General Terms.


3. SUB-MERCHANT OBLIGATIONS AND REQUIREMENTS.
   1. Association Operating Rules and Compliance. Sub-Merchant acknowledges that Acquirer and Bank must maintain closer controls over high-volume sub-merchants of Finix and, therefore, Sub-Merchant must immediately notify us if it has, or in Sub-Merchant’s reasonable opinion will have greater than $1,000,000 in annual card sales volume processed hereunder (based upon the date Sub-Merchant’s account is approved by Acquirer for any one Association. In the event that more than $1,000,000 in Visa transactions and/or $1,000,000 in MasterCard transactions (or such other amount provided by the Operating Regulations) (“Benchmark Amount”) is processed through and on behalf of Sub-Merchant in any 12-month period, Sub-Merchant will automatically be deemed to have accepted, and will be bound by, the “Merchant Services Agreement for Sub-Merchants” with Acquirer (included below), the terms of which will be independently enforceable by Acquirer.

      You shall comply with the Associations’ operating rules (“Operating Rules”), including the Operating Rules applicable to the Visa PSP and MasterCard Payment Facilitator programs, American Express Merchant Operating Guide, Program Merchant Data Security Requirements, and all applicable local, state, and federal laws, rules, and regulations (“Applicable Laws”). The Operating Rules are incorporated by reference herein, shall be deemed to have the same force and effect as if set forth in full herein, and may be available on Association websites, such as http://www.usa.visa.com/merchants, http://www.mastercardmerchant.com, and https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf as updated from time to time. Without limiting the foregoing, Sub-Merchant agrees that it will fully comply with any and all confidentiality and security requirements of the USA Patriot Act (or similar law, rule or regulation) and the Associations, including but not limited to Payment Card Industry Data Security Standard (“PCI”), the Visa Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations. Should any Operating Rules(s) not be publicly available or otherwise made available to Sub-Merchant, such unavailability shall not alter or limit Sub-Merchant’s obligation to comply with the Operating Rules. Notwithstanding Finix’s assistance in understanding the Operating Rules, Sub-Merchant expressly acknowledges and agrees that it is assuming the risk of Sub-Merchant’s compliance with all provisions of the Operating Rules, regardless of whether Sub-Merchant has possession of those provisions. Any conflict between the terms and conditions set forth in this Agreement and the Operating Rules shall be resolved in favor of the Operating Rules.

   
   
   2. Sub-Merchant Business Information. On an ongoing basis, you must promptly provide Finix with the current address of each location, all “doing business as” (DBA) names used by you, and a complete description of goods sold and services provided, or charitable donations accepted, by you. You agree to provide Finix with 30 days’ prior written notice of your intent to change your business form or entity in any manner (e.g., a change from a limited liability company to a corporation), and/or of your intent to sell all of your stock or assets to another entity. You may not use the Services for any service other than as set forth in this Agreement.
   
   
   3. Identify Sub-Merchant. To the extent Sub-Merchant interacts with Cardholder, Sub-Merchant will prominently and unequivocally inform the Cardholder of the identity of the Sub-Merchant at all points of interaction so that the Cardholder readily can distinguish the Sub-Merchant from any other party, such as a supplier of products or services to Sub-Merchant, including Finix. Further, Sub-Merchant must ensure that the Cardholder understands that Sub-Merchant is responsible for the card transaction, including delivery of the products (whether physical or digital) or provision of the services that are the subject of the card transaction, and for customer service and dispute resolution.
   
   
   4. Third Parties. Finix and Sub-Merchant may use one or more third party service providers (“TPSP’s”) in connection with the Services and/or the processing of some or all of its Card transactions. In no event shall Sub-Merchant use a TPSP unless such TPSP is compliant with PCI and/or the Payment Application Data Security Standard (“PA-DSS”), depending on the type of TPSP, as required by the Operating Rules. Sub-Merchant acknowledges and agrees that Sub-Merchant shall cause its TPSP to complete any steps or certifications required by any Association (e.g., registrations, PA-DSS, PCI, audits, etc). Sub-Merchant shall cause its TPSP to cooperate with Acquirer in completing any such steps or certifications (if applicable), and in performing any necessary due diligence on such TPSP. Sub-Merchant shall be solely responsible for any and all applicable fees, costs, expenses and liabilities associated with such steps, registrations and certifications. Sub-Merchant shall bear all risk and responsibility for conducting Sub-Merchant’s own due diligence regarding the fitness of any TPSP(s) for a particular purpose and for determining the extent of such TPSP’s compliance with the Operating Rules and applicable law. Sub-Merchant expressly agrees that neither Acquirer, Bank, or Finix shall in any event be liable to Sub-Merchant or any third party for any actions or inactions of any TPSP used by Sub-Merchant, even if Acquirer, Bank or Finix introduced or recommended such TPSP.
   
   
   5. Operating Account. Sub-Merchant shall establish an Operating Account at a financial institution of Sub-Merchant’s choice prior to processing any payments. The Operating Account shall be utilized for deposits from Payment Card or eCheck Processing Transactions. Sub-Merchant shall advise Finix of the name and address of the financial institution, routing number and account number of the account. Sub-Merchant authorizes Finix to debit fees, charges, and any amounts owed to Finix, including amounts owed due to Disputes and ACH returns, from the Operating Account either daily, monthly or at other times deemed appropriate by Finix through the ACH Network or by a manual debit of the account.
   
   
   6. Maintenance of the Operating Account. Sub-Merchant shall maintain the Operating Account throughout the term of this Agreement, to include any extensions or renewals thereof. Sub-Merchant shall, at all times, maintain sufficient funds in the Operating Account to ensure that all credit Entries originated and returns of debit Entries originated, as well as any and all fees, charges, and costs provided for under the Agreement are paid, including any reserve requirements set by Finix in accordance with this Agreement. Sub-Merchant agrees to deposit funds into the Operating Account as required in order to ensure that sufficient funds are maintained in the Operating Account at all times.
   
   
   7. Sub-Merchant Authorization and Waiver. Sub-Merchant authorizes Finix, Acquirer, or Member Bank to make deposits to or withdrawals from the Operating Account. Finix will have no signatory or ownership rights in the Operating Account and will have no right to negotiate or assert ownership rights in deposited funds. Sub-Merchant shall be responsible for all Bank charges and Sub-Merchant shall designate representatives authorized to make changes to the Operating Account. If Sub-Merchant requests an Operating Account change, Sub-Merchant must provide Finix at least ten (10) days prior written notice. Sub-Merchant is responsible for providing Finix with accurate contact, payment, and account information for each Account. Finix is not liable for any amounts directed to an account that has been designated as the Operating Account by any purported representative of Sub-Merchant. If required by Finix or any financial institution where the Operating Account is maintained, Sub-Merchant agrees to sign any documents required to authorize the deposits and withdrawals, including without limitation, ACH Transactions.
   
   
   8. Retention of Sales Information. Sub-Merchant shall store all sales/service drafts and Transaction records in strict compliance with the Operating Rules, and in a limited access area for at least eighteen months after the date of sales.
   
   
   9. Data. Sub-Merchant acknowledges that Finix will receive and handle Data in connection with Finix’s performance under this Agreement, whether received directly from Sub-Merchant, Platform Provider or through the POS Equipment or Platform. Sub-Merchant further acknowledges, agrees, and consents to Finix’s right to receive, access, process, transmit, store, and create derivative works of the Data: (a) as reasonably required for Finix to perform its respective obligations hereunder; (b) to monitor and report fraud or other unlawful or suspicious activities by Cardholders, Payors, or any third party; (c) to develop and improve Finix’s products and services; (d) as required to comply with court order, government investigation, industry self-regulatory guidelines, or other legal requirements and operations of applicable law; and (e) in furtherance of its other business operations and commercial purposes. Furthermore, Sub-Merchant permits Finix to share Data with the Associations, Acquirer, and Member Bank, and each of the foregoing may use the same without restriction for marketing, analysis, transactions or relationship communication, and any other lawful business purpose. Separate from and in addition to any other representation or warranty herein contained, Sub-Merchant represents and warrants that: (i) it possesses all necessary rights, authorizations, licenses, and consents to provide Data to Finix (and for Finix to subsequently use and access such Data) as set forth herein, including without limitation such authorizations and consents required under applicable laws and regulations governing data privacy, information security, and consumer protection; and (ii) the Data does not infringe, misappropriate, or otherwise violate the personal or proprietary rights of any third party.
   
   
   10. Account Updater Services. Finix may provide Sub-Merchant the ability to participate in the Associations’ Account Updater Services, through which Finix or its service providers may obtain, on Sub-Merchant’s behalf, applicable updated Cardholder data of eligible Cards from participating issuing banks and other third-party sources. Sub-Merchants that use the Account Updater Services may use the updated Cardholder account information to support subscription services, recurring payments, and other account-on-file functions, consistent with Applicable Law, the Operating Rules, and any additional requirements or terms established by Finix. Sub-Merchant shall provide its customers with all disclosures required under Applicable Law to enable Sub-Merchant to use the Account Updater Services to update the customer’s Card(s). Sub-Merchant assumes all risk associated with its use of the Account Updater Services, and Finix shall have no liability whatsoever to Sub-Merchant for any liability associated with the Account Updater Services. Finix may cease offering or providing the Account Updater Services at any time.
   
   
   11. American Express Marketing Opt-Out. Sub-Merchant may opt out of receiving commercial marketing communications from American Express by notifying Finix in writing of its desire to do so. Sub-Merchant acknowledges that it may continue to receive marketing communications while Finix communicates the opt-out request to American Express and American Express updates its records to reflect such choice. Opting out of commercial marketing communications will not preclude Sub-Merchant from receiving important transactional or relationship messages from American Express.
   
   
   12. Same-Day ACH Services. Sub-Merchant may be eligible to receive “Same-Day ACH Services,” subject to Finix’s approval of Sub- Merchant for receipt of such Same-Day ACH Services. Same-Day ACH Services may be subject to additional Fees as identified to Sub-Merchant by Platform Provider. Finix reserves the right to impose a cap on the daily amount of settlement paid to each Sub-Merchant in its sole discretion. Sub-Merchant agrees that Finix may suspend or terminate the Same-Day ACH Services to Sub-Merchant at any time in its sole discretion, in which case the applicable settlement payouts will thereafter be made pursuant to Finix’s standard practices and schedule. Sub-Merchant acknowledges that Same-Day ACH Services may be subject to the policies and procedures of third-party processors and recipient banks with respect to such services. Sub-Merchant further acknowledges and agrees that: (i) Same-Day ACH Services are provided on an “as-is” basis; and (ii) Finix does not guarantee the accelerated settlement of Transactions subject to a request for Same-Day ACH Services. If Sub-Merchant receives Same-Day ACH Services, Sub-Merchant hereby appoints Finix as its limited payment collection agent solely for the purpose of accepting payments from individuals and entities (hereafter “Payors”) on Sub-Merchant’s behalf. Sub-Merchant agrees that a payment made by a Payor to Finix shall be considered the same as a payment made directly to Sub-Merchant. Sub-Merchant understands that Finix’s obligation to transmit a payment to Sub-Merchant is subject to and conditional upon successful receipt of the associated payment from a Payor. In accepting appointment as Sub-Merchant’s limited payment collection agent, Finix assumes no liability for any of Sub-Merchant’s acts or omissions.
   
   
   13. Dashboard. Finix or Platform Provider may provide Sub-Merchant with access to a management dashboard developed by Finix (the “Dashboard”). The Dashboard contains information about transactions and enables Sub-Merchant to perform certain actions to manage transactions, such as submitting evidence for eligible disputes and processing refunds. The Dashboard may also contain reports, graphs, charts and/or tables generated by Finix using Sub-Merchant’s transaction data, which are for informational purposes only and may not reflect real-time data. Sub-Merchant is responsible for securing and maintaining the confidentiality of any login or access credentials to the Dashboard, including without limitation those provided by Finix or Platform Provider to Sub-Merchant to allow Sub-Merchant to access or use the Dashboard, and Sub- Merchant will be fully responsible for all activities that occur through the use of such credentials. Sub-Merchant agrees to notify Finix immediately if Sub-Merchant believes the confidentiality of such credentials has been compromised or if Sub-Merchant suspects unauthorized use of such credentials. Finix will not be liable for any loss or damage arising from Sub-Merchant’s failure to comply with this paragraph. Finix reserves the right to suspend or terminate Sub-Merchant’s access to the Dashboard at any time, including upon termination of this Agreement.
   
   
   14. POS Equipment. Platform Provider may supply Sub-Merchant with POS Equipment in order to enable Sub-Merchant’s acceptance of Card-Present Transactions. Sub-Merchant must, at all times, use POS Equipment in accordance with Operating Rules, Applicable Laws, and this Agreement. Finix shall have no obligation to provide support to Sub-Merchant in connection with the POS Equipment; any support required by Sub-Merchant in connection with the POS Equipment shall be provided by Platform Provider. If Finix suspects or knows that Sub-Merchant is using or has used POS Equipment for unauthorized, fraudulent, or illegal purposes, or in a manner that Finix deems unacceptable, in its sole discretion, Finix may limit or disable the functionality of Sub-Merchant’s POS Equipment. Further, with respect to POS Equipment, Sub-Merchant shall:
       

   i. Ensure that POS Equipment is only used for commercial purposes and within the United States;

   
   

   ii. Ensure that appropriate Association decals and marks are prominently displayed at each location where POS Equipment is used and on other promotional materials as required by the Operating Rules;

   
   

   iii. Ensure that only competent trained employees (or persons under their supervision) are allowed to operate or use POS Equipment and that adequate security measures are put in place to safeguard POS Equipment and data collected by and held on POS Equipment;

   
   

   iv. Not move any POS Equipment to a new location without registering the device to its new location and downloading the local device configuration;

   
   

   v. Not represent, or use any technical measures in an attempt to represent, that the location of POS Equipment is a location different from its actual physical location;

   
   

   vi. Not use POS Equipment to enable any party to benefit from any activities that have not been previously approved by Finix in writing;

   
   

   vii. Not copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the POS Equipment;

   
   

   viii. Not transfer any rights granted to Sub-Merchant under this Agreement unless otherwise agreed between Sub-Merchant and Finix in writing;

   
   

   ix. Not work around any of the technical limitations implemented in the POS Equipment or enable functionality that is disabled or prohibited, including replacing any software provided by Finix with third-party software;

   
   

   x. Not reverse engineer or attempt to reverse engineer POS Equipment except as expressly permitted by Applicable Laws;

   and
   

   xi. Not perform or attempt to perform any actions that would interfere with the normal operation of POS Equipment or impact the use of the POS Equipment by other users.

4. SECURITY INTEREST; RESERVE; SETOFF RIGHTS.
   
   
   1. Security Interest and Lien. Sub-Merchant hereby grants a security interest and lien upon funds payable to or in the Operating Account or any substitute account now and in the future and all proceeds thereof to Finix to secure all fees, costs, and charges due in accordance with this Agreement (the “Amounts Due”). In the exercise of its rights with regard to the security interest and lien, Finix may only debit the Operating Account to the extent of the then existing amounts due and shall only do so if Finix becomes reasonably concerned about whether the Sub-Merchant will otherwise fulfill its financial obligations. The security interest and lien granted herein shall survive the termination of this Agreement until all amounts due are determined and paid in full. Sub-Merchant hereby authorizes Finix to prepare all documents or to take other actions reasonably necessary to perfect its security interest or lien in the Operating Account or any substitute account therefor.
   
   
   2. Establishment of Reserve Account. We may withhold funds by temporarily suspending or delaying payouts of Transaction proceeds to you and/or designating payouts of Transaction proceeds in a separate reserve account (“Reserve”) to secure the performance of your obligations under any agreement between you and Finix. We may require a Reserve for any reason related to your use of the Services. The Reserve will be in an amount as reasonably determined by us to cover potential losses to Finix. If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with the Services, including any funds (a) deposited by you, (B) due to you, or (c) available in your Operating Account, or other payment instruction registered with us.
   
   
   3. Set-Off Rights. To the extent permitted by law, we may set off any amounts owed by you, including without limitation in connection with Disputes or refunds, against (i) any amounts which Finix would otherwise deposit to the Operating Account; (ii) the Operating Account and Reserve; (iii) any other amounts Sub-Merchant may owe Finix; or (iv) against any property of Sub-Merchant in the possession or control of Finix. For the avoidance of doubt, if you owe us an amount that exceeds your cumulative incoming proceeds, we may debit the Operating Account. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You are liable for any of our costs associated with collection in addition to any amounts owed, including attorneys’ fees and expenses, collection agency fees, and any applicable interest.
   
   
   4. Auditing and Credit Investigation. Sub-Merchant authorizes Finix or its respective agents (including without limitation Platform Provider) to engage in any investigation of Sub-Merchant’s finances, activities, and operations that Finix reasonably determines necessary to underwrite Sub-Merchant and confirm Sub-Merchant’s eligibility for and use of the Services. Sub-Merchant agrees to cooperate in any such investigation and to provide Finix or its respective agents (including Platform) with any information required to complete such an investigation. Sub-Merchant authorizes Finix or its respective agents (including without limitation Platform Provider) to make any background, identity verification, or credit inquiry that Finix deems necessary and authorizes any consumer reporting agency to compile information to answer such inquiries and furnish that information to Finix or its respective agents (including without limitation Platform Provider). If applicable, Sub-Merchant agrees to work with Finix or its respective agents (including without limitation Platform Provider) to obtain any necessary authorizations for any background, credit, or other check or report on Sub-Merchant’s owners, officers, guarantors, directors, or other principals. Finix may terminate this Agreement or suspend or delay the provision of Services if the information received in any investigation is unsatisfactory in Finix’s sole discretion. Finix may also audit from time-to-time Sub-Merchant’s compliance with the terms of this Agreement. Sub-Merchant shall provide all information requested by Finix necessary to complete the audit. Upon Finix’s request, Sub-Merchant shall provide all of its books and records, including financial statements for Sub-Merchant and personal financial statements for all guarantors. Sub-Merchant authorizes Finix to make on-site visits to any and all of the Sub-Merchant’s locations with regard to all information necessary or pertinent to the Services. Sub-Merchant authorizes Finix to share any information it collects or receives from or about Sub-Merchant with the Acquirer and Member Bank.
   
   
5. SUB-MERCHANT REPRESENTATIONS AND WARRANTIES.
   1. Without limiting any other warranties hereunder, you represent, warrant and covenant with us and with the submission of each card transaction that:
      
      
      1. Each transaction is genuine and arises from a bona fide transaction, permissible under the Operating Rules and Applicable Law, by the Cardholder directly with you;
      
      
      2. Each transaction represents a valid obligation for the amount shown on the sales draft and does not involve the use of a card for any other purpose (including but not limited to illegal or prohibited activity such as money-laundering or financing of terrorist activities);
      
      
      3. Each transaction represents an obligation of the related Cardholder for the amount of the transaction;
      
      
      4. The amount charged for each Card Transaction is not subject to any dispute, set off or counterclaim;
      
      
      5. Each transaction amount is only for respective merchandise or services (including taxes, but without any surcharge) sold, leased, or rented to a Cardholder by you, or for respective charitable donations received by you from a Cardholder or bank account owner, and, except for any delayed delivery or advance deposit transactions disclosed on the Application and authorized by this Agreement, that merchandise, service or charitable donation was actually delivered to the Cardholder entering into that transaction, performed for the Cardholder entering into that transaction, or received by you simultaneously upon your accepting and submitting that transaction for processing;
      
      
      6. With respect to each transaction, you have no knowledge or notice of any fact, circumstance, or defense which would indicate that such transaction is fraudulent or not authorized by the related Cardholder or which would otherwise impair the validity or collectability of that Cardholder’s obligation arising from that transaction or relieve that Cardholder from liability with respect thereto;
      
      
      7. Each transaction is made in compliance with this Agreement and Applicable Law;
      
      
      8. Each sales draft is free of any alteration not authorized by the related Cardholder; and
      
      
      9. You have not opened multiple processing accounts without having provided information sufficient to demonstrate that such additional processing accounts are necessary for legitimate business.
      
      
   
   
   2. Further, Sub-Merchant represents and warrants (i) you are authorized to carry on your own business as it is conducted and to enter into this Agreement; (ii) no other authorizations, consents, or approvals are required in connection with the validity and enforceability of this Agreement or your execution, delivery, and performance of this Agreement; (iii) 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 merchant category code under Operating Rules, in a way not previously disclosed to us; (iv) 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 person; (v) you, or your third-party service providers, have not filed, or intend to file, a bankruptcy petition not previously disclosed to us; (vii)all information and Data you provide to us, or for which you engage a third party to provide to us, is complete, truthful, accurate, valid, and your lawful property, and you have the right to communicate such information; (viii) you own or otherwise have the full right and authority to use and disseminate all information, Data, graphics, text, video, music, or other intellectual property which forms a part of your website, or which you use in your advertising; (ix) you and your third-party service providers are legally authorized to sell any product or services, or accept charitable donations, offered and have obtained all necessary regulatory approvals and certificates (“Certificates”), and you have the proper facilities, equipment, inventory, agreements, and personnel required to conduct business. You will provide us any copies of Certificates immediately upon receipt of our request.
   
   
6. TERM AND TERMINATION.
   1. Term. This Agreement shall become effective on the Effective Date and, unless sooner terminated in accordance with this Agreement, continue on a month-to-month basis until terminated by either Party upon notice to the other Party. Finix and/or the Associations may terminate your use of the Services and/or this Agreement at any time for any reason. Any termination of this Agreement does not relieve you of obligations to pay fees or costs accrued prior to termination, Disputes, and any other amounts owed to us as provided in this Agreement. Any funds that we are holding in custody for you at the time of termination, less any applicable fees, will be paid out according to your payout schedule, subject to the conditions in this Agreement. If an investigation is pending at the time this Agreement is terminated, we may hold your funds as described herein. If you are later determined to be entitled to some of the funds, we will release those holds for you. Further, Finix will immediately terminate this Agreement if any Association de-registers Finix. If the Acquirer ceases to be a member of any of the Associations for any reason, or if the Acquirer no longer has a license to use an Association’s marks, then the Acquirer will cease processing with respect to that Association’s transactions and Finix may engage another processor.
   
   
   2. Suspension of Services. Finix may, in its sole discretion, suspend the Services at any time with or without notice to you. Finix may selectively terminate one or more of Sub-Merchant's approved locations or certain Services without terminating this Agreement.
   
   
   3. Deconversion Fees. If this Agreement is terminated and Sub-Merchant requests assistance from Finix with moving to a new processor, Sub-Merchant agrees to pay Finix for its then-current fees associated with such deconversion services as provided by Finix; provided, however, in no event shall Finix be obligated to provide deconversion services to Sub-Merchant.
   
   
7. FEES.
   1. General. Platform Provider is responsible for setting the fees related to Sub-Merchant’s use of the Services, subject to Finix’s approval, and disclosing such fees to Sub-Merchant. Platform Provider may also charge Platform Fees to Sub- Merchant. Finix does not control and is not responsible for any of the Platform Fees charged to Sub-Merchant by Platform Provider. Any disputes regarding any Platform Fee shall be exclusively resolved between you and Platform Provider. Sub- Merchant agrees to pay all fees set by Platform Provider. All fees imposed upon Sub-Merchant are netted against other funds due to Sub-Merchant or debited from Sub-Merchant’s bank account or other payment instrument associated with Sub- Merchant’s Account. Sub-Merchant agrees to pay the fees for the Service that are posted from time to time by Finix or by Platform Provider. Card-Not-Present Transaction and Card-Present Transaction payment processing fees shall not exceed 5% of the total Transaction amount plus $0.50 per Transaction. Sub-Merchant also agrees to pay Finix as applicable, the amount of any fees, charges, or penalties assessed against Finix as applicable, by any Association, Issuer, Acquirer, Bank, NACHA, or any other third party.
   
   
   2. Fee Changes. Subject to the terms of this Agreement, each of Finix and Platform Provider reserve the right to change its fees. Pass-through charges from third parties, including, but not limited to, Payment Card Processing assessments and interchange or ACH related fees may be changed by such third parties from time to time. Finix or Platform Provider will try, but are not required, to give Sub-Merchant thirty (30) days’ notice before the effective date of any change in a pass-through charge or fee.
   
   
   3. Third Party Assessments. Notwithstanding any other provision of this Agreement, Sub-Merchant shall be responsible for all amounts imposed or assessed to Sub-Merchant, Finix Acquirer, or Bank in connection with this Agreement by third parties such as, but not limited to, Associations and third-party service providers (including telecommunication companies) to the extent that such amounts are not the direct result of the gross negligence or willful misconduct of Acquirer, Bank or Finix as applicable. Such amounts include, but are not limited to, fees, fines, assessments, penalties, and loss allocations. Any changes or increases in such amounts shall automatically become effective upon notice to Sub-Merchant. In the event that Acquirer assesses Finix with the cost of funds associated with a circumstance where Acquirer, for whatever reason, advances settlement or any amounts and/or delays the assessment of any fees, Sub-Merchant shall be fully responsible for any portion of such assessment that is attributable to the Services for Sub-Merchant.
   
   
   4. Refunds. Fees charged for executing the original Transaction will not be refunded in part or in whole to the Sub-Merchant if such Transaction is refunded or made subject to a Dispute. Platform Provider is solely responsible for determining whether or not Platform Fees are refundable. If Sub-Merchant receives a refund of Platform Fees, Sub-Merchant hereby appoints Finix as its limited payment collection agent solely for the purpose of accepting payments from Payors on Sub-Merchant’s behalf. Sub-Merchant agrees that a payment made by a Payor to Finix shall be considered the same as a payment made directly to Sub-Merchant. Sub-Merchant understands that Finix’s obligation to transmit a payment to Sub-Merchant is subject to and conditional upon successful receipt of the associated payment from a Payor. In accepting appointment as Sub-Merchant's limited payment collection agent, Finix assumes no liability for any of Sub-Merchant’s acts or omissions.
   
   
   5. Late Fees. If Sub-Merchant does not pay amounts owed to Finix when due, Finix may charge and Merchant agrees to pay a late fee of 1.5% per month on the outstanding balance, or the highest amount allowed by law, whichever is less.
   
   
   6. Collection Charges. Should Finix take any action against Sub-Merchant to collect sums due hereunder, Sub-Merchant agrees to pay all costs associated with such collection efforts, including but not limited to reasonable attorney’s fees.
   
   
   7. Taxes, Information Filings and Backup Withholding. Sub-Merchant agrees to pay all federal, state, and local sales, use, income, property, and excise taxes, which may be assessed in connection with the Services provided under this Agreement. Sub-Merchant agrees and understands that Finix, Finix’s designee, or Acquirer will provide information reporting to the Internal Revenue Services and applicable state treasurers for all reportable payment transactions of Sub-Merchant as defined in IRC § 6050W. If necessary, Finix or its designee will conduct backup withholding on the revenue generated by the reportable payment transactions of the Sub-Merchant.
   
   
   8. Additional Cardholder Fees. Finix may offer Sub-Merchant the ability to charge Cardholders additional fees that may reduce your payment processing costs. You are solely responsible for ensuring that any such fee charged is compliant with the Operating Rules and Applicable Laws.
   
   
8. INDEMNIFICATION AND LIMITATIONS OF LIABILITY.
   
   
   1. Indemnification. Sub-Merchant shall indemnify, defend, and hold harmless Finix and its directors, officers, employees, affiliates, agents, principals, successors, and assigns (collectively, “Indemnitees”) from and against any and all proceedings, claims, losses, damages, demands, liabilities and expenses whatsoever, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, incurred in connection with any third-party claim, suit, or other proceeding made or brought against any of the Indemnitees resulting from or arising out of: (i) the Services in this Agreement; (ii) Sub-Merchant’s payment activities; (iii) the business of Sub-Merchant or its customers; (iv) any sales transaction acquired by Acquirer or Member Bank; (v) any information provided by Sub-Merchant on which Finix relied in determining to grant, extend or continue Services that was inaccurate, misrepresented or fraudulent; (vi) use or alleged misuse of the ACH system and/or fines assessed against Finix, Bank, or any Financial Institution in connection therewith; (vii) any noncompliance with the Operating Rules (or any rules or regulations promulgated by or in conjunction with the Associations) by Sub-merchant or its agents (including any TPSP); (viii) any issue, problems, or disputes between Acquirer and Sub-Merchant, or Bank and Sub-Merchant; (ix) any Data Incident, any infiltration, hack, breach, or violation of the processing system of Sub-Merchant, TPSP, or any other third party processor or system; (x) any breach or nonperformance of any provision of this Agreement on the part of Sub-Merchant, or its employees, agents, TPSPs, or customers; or (xi) any failure by Sub-Merchant to properly describe or deliver goods or services, or comply with its legal or contractual obligations to its customers. The indemnification obligations hereunder shall survive the termination of the Agreement.
   
   
   2. Limitation of Liability. Neither Party shall be liable for lost profits, lost business, or any incidental, special, consequential or punitive damages (whether arising out of circumstances known or foreseeable by the other Party) suffered by such Party, their customers or any third party in connection with the Services. However, nothing in the foregoing sentence is in any way intended, and shall not be construed, to limit (i) Sub-Merchant’s obligation to pay any fees, assessments or penalties due under this Agreement, including but not limited to those imposed by telecommunications services providers, VISA, MasterCard and/or other Association(s); (ii) Sub-Merchant’s liability for breach of its confidentiality obligations hereunder, or (iii) Sub-Merchant’s obligation to indemnify Finix pursuant to this Agreement. In no event will Finix be liable for any damages or losses that are wholly or partially caused by Sub-Merchant, or its employees, agents, or TPSPs. Sub-Merchant is solely responsible for, and Finix expressly disclaims all liability for, Sub-Merchant’s compliance with Applicable Laws and obligations related to its provision of the goods or services to Sub-Merchant’s customers, or receipt of charitable donations. This may include providing customer service, notification and handling of refunds or consumer complaints, provision of receipts, or other actions not related to the services provided by Finix hereunder. Further, neither Finix nor Bank shall be liable to Sub-Merchant or Sub-Merchant's customers or any other person for any of the following: (i) any loss caused by a Transaction downgrade resulting from defective or faulty software or equipment; (ii) any loss or liability resulting from the product or service of a third party; (iii) denial of credit to any person or Merchant’s retention of any Card or any attempt to do so; or (iv) any delay by an ACH Operator or Receiving Depository Bank in processing any credit or debit Entry, nor for the failure of a third party to process, credit, or debit any such Entry or for other acts of omission.
   
   
   3. Limitation of Damages. FINIX SHALL NOT BE LIABLE FOR ANY DAMAGES OR LIABILITIES IN ANY CLAIM ARISING BETWEEN THE PARTIES IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT THAT EXCEED IN THE AGGREGATE THE TOTAL AMOUNT OF FEES RECEIVED BY FINIX UNDER THIS AGREEMENT DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH THE APPLICABLE CLAIM FIRST ACCRUED, REGARDLESS OF THE LEGAL THEORY OR CAUSE OF ACTION.
   
   
   4. Warranty Disclaimer. SUB-MERCHANT ACKNOWLEDGES THAT FINIX HAS NOT PROVIDED ANY WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE WITH RESPECT TO THE SERVICES PROVIDED HEREIN. SHOULD THERE BE ERRORS, OMISSIONS, INTERRUPTIONS, OR DELAYS RESULTING FROM FINIX’S PERFORMANCE OR FAILURE TO PERFORM OF ANY KIND, FINIX’S LIABILITY SHALL BE LIMITED TO CORRECTING SUCH ERRORS, IF COMMERCIALLY REASONABLE. SUB-MERCHANT HEREBY ACKNOWLEDGES THAT THERE ARE RISKS ASSOCIATED WITH THE ACCEPTANCE OF CARDS AND SUB-MERCHANT HEREBY ASSUMES ALL SUCH RISKS EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN.
   
   
9. NOTICE. All notices, requests, demands or other instruments, which may be or are required to be given by any Party herein, shall be in writing and each shall be deemed to have been properly given (i) three Business Days after being sent by certified mail, return receipt requested; (ii) upon delivery by a nationally recognized overnight delivery service to the addresses listed herein for the respective Parties; or (iii) solely in the case of notices from Finix to Sub-Merchant, (A) on the Sub-Merchant Statement, (B) through electronic communications on the Platform, or the Platform Provider’s website, (C) through the Dashboard or Finix’s website, and/or (D) to the email address provided by Sub-Merchant in the Application as noted below, it being understood in each case that Sub-Merchant by this Agreement has expressly consented to receive effective legal notice by such means. Notices shall be addressed as follows:

   If to Finix:

   
   

   Finix Payments, Inc.

   
   

   631 Howard Street,

   
   

   Ste. 100,

   
   

   San Francisco, CA 94105

   
   

   Attn: Legal Department

   
   
   

   If to Sub-Merchant:

   
   

   The physical or email address provided in the Application

   
   

   Any Party may change the address to which subsequent notices are to be sent by written notice to the other Party.

   
   
10. AMENDMENTS. Finix may amend or modify this Agreement, including by changing fees or pass-through charges pursuant to Section 7(B), and any such amendment or modification will be effective and binding on Sub-Merchant upon notice. Sub-Merchant’s continued use of Services after the effective date of any such amendment or modification shall signify Sub-Merchant’s acceptance of, and agreement to, abide by the terms and conditions contained in any such amendment or modification. To withdraw Sub-Merchant’s consent, Sub-Merchant must close its Account. Sub-Merchant can access a copy of the current terms of this Agreement at https://finix-hosted-content.s3.amazonaws.com/flex/v2/finix-terms-of-service.html or, in some cases, through the Platform’s terms of service. For the avoidance of doubt, notice may be given as specified in Section 9 (NOTICE) of these General Terms.


11. MISCELLANEOUS
    
    
    1. Rights to Dispute Charges; Reports; Invoices. You expressly agree that your failure to notify us that you have not received any settlement funds within three (3) business days from the date that settlement was due to occur, or fail to reject any report, notice, or invoice within thirty (30) business days from the date the report or invoice is made available to you, shall constitute your acceptance of the same. Additionally, you are solely responsible for reconciling information in the Dashboard with your transaction records and identifying any errors. You agree to promptly notify Finix of any errors. Finix will investigate and, if appropriate, attempt to correct reported errors in accordance with the Operating Rules. Your failure to report an error to us within sixty (60) days of it first appearing in your Dashboard will be deemed a waiver of any right to amounts that may be owed to you in connection with such error.In the event you believe that Finix has failed in any way to provide the Services, you agree to provide Finix with written notice, specifically detailing any alleged failure, within sixty (60) days of the date on which the alleged failure first occurred.
    
    
    2. Investigations. Sub-Merchant shall assist Finix in any and all investigations of Transactions in a timely manner and will provide written reports of investigated transactions to Finix upon Finix’s request.
    
    
    3. Confidentiality. Neither Party shall disclose to any third party the Confidential Information disclosed by the other Party and shall not use any such Confidential Information for any purpose other than the purpose for which it was originally disclosed to the receiving Party. Each Party agrees to treat Confidential Information with the same degree of care and security as it treats its most confidential information, but in no circumstance less than a reasonable degree of care. Each Party may disclose such Confidential Information to employees and agents who require such knowledge to perform services under this Agreement, provided that such employees and agents are subject to obligations of confidentiality in regard to the protection of the Confidential Information no less binding than those set forth herein. Confidential Information shall not include information that (i) is known to the receiving Party at the time it receives Confidential Information; (ii) has become publicly known through no wrongful act of the receiving Party; (iii) has been rightfully received by the receiving Party from a third Party authorized to make such communication without restriction; (iv) has been approved for release by written authorization of the disclosing Party; or (v) is required by law to be disclosed. In the event either Party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information, the recipient shall promptly notify each other Party of such receipt and may, thereafter, comply with such subpoena or process to the extent permitted by law. The terms and conditions and commissions associated with this Agreement are specifically included in the definition of Confidential Information. The obligations of the Parties under this Section will survive termination of this Agreement for whatever reason, and will bind the Parties, their successors and assigns. Notwithstanding the foregoing, the Parties acknowledge and agree that Data is not Confidential Information, and shall be subject to the terms, restrictions, and other provisions herein governing the Parties’ use and access to Data in lieu of this paragraph.
    
    
    4. Independent Contractor; Third Party Beneficiary. In the performance of its duties herein, each Party shall be an independent contractor, not an employee or agent of the other Party. You are not a third-party beneficiary to any agreement between Finix and the Bank, and you may not bring any claims related thereto against the Bank. The Associations, Acquirer, or Member Bank may enforce the terms of this Agreement against Sub-Merchant.
    
    
    5. Cooperation. In their dealings with one another, each Party agrees to act reasonably and in good faith and to fully cooperate with each other in order to facilitate and accomplish the matters contemplated by this Agreement.
    
    
    6. Entire Agreement. This Agreement supersedes any other agreement, whether written or oral, that may have been made or entered into by any Party (or by any officer or officers of any Party) relating to the matters covered herein and constitutes the entire agreement of the Parties hereto. In the event that there is a conflicting term between the Application and the General Terms, the General Terms supersede the Application.
    
    
    7. Assignment. Neither this Agreement nor any of Sub-Merchant’s rights or obligations may be assigned by Sub-Merchant without the prior written consent of Finix. A change in control of Sub-Merchant as a result of a sale, reorganization, merger or otherwise, shall be deemed an assignment and shall require the written consent of Finix.
    
    
    8. Captions. Captions in this Agreement are for convenience of reference only and are not to be considered as defining or limiting in any way the scope or intent of the provisions of this Agreement.
    
    
    9. Governing Law, Arbitration. This Agreement shall be governed and construed in accordance with the laws of the State of California without regard to its principles of conflict of laws. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be in California. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
    
    
    10. Power of Attorney. Sub-Merchant appoints Finix as its attorney-in-fact to execute such documents as necessary or desirable to accomplish perfection of any security interests. The appointment is coupled with an interest and shall be irrevocable as long as Sub-Merchant owes any amount to Finix.
    
    
    11. Attorneys’ Fees. If Finix takes legal action against Sub-Merchant for any amounts due to Finix or if Sub-Merchant is required to indemnify Finix pursuant to this Agreement, Sub-Merchant shall pay reasonable costs and attorneys' fees incurred by Finix whether suit is commenced or not. Attorneys’ fees are due whether or not an attorney is an employee of Finix or its affiliates.
    
    
    12. No Waiver. Any delay, waiver, or omission by a Party to exercise any right or power arising from any breach or default of the other Party in any of the terms, provisions or covenants of this Agreement shall not be construed to be a waiver of any subsequent breach or default of the same or any other terms, provisions or covenants on the part of the Party. Any waiver shall not be deemed to modify any of the terms of the Agreement. All remedies afforded by this Agreement for a breach hereof shall be cumulative.
    
    
    13. Bankruptcy. Sub-Merchant shall notify Finix within five days upon filing of voluntary or involuntary bankruptcy proceedings by or against Sub-Merchant. The Parties acknowledge that this Agreement constitutes an extension of financial accommodations by Finix to Sub-Merchant within the meaning of Section 365 of the Bankruptcy Code. The right of Sub-Merchant to receive any amounts due from Finix hereunder is expressly subject and subordinate to Disputes, Return Entries, recoupment, lien, set-off and security interest rights of Finix regardless of whether such Disputes, Return Entries, recoupment, lien, set-off and security interest rights are claims that are liquidated, unliquidated, fixed, contingent, matured, or un-matured.
    
    
    14. Compliance with Laws. Sub-Merchant represents and warrants that it has obtained all necessary regulatory approvals, certificates and licenses to provide any services it intends to offer and that it is in compliance with the regulations of the Federal Trade Commission and the Federal Communications Commission and shall comply with all present and future federal, state and local laws and regulations of the United States pertaining to Transactions.
    
    
    15. Force Majeure. Finix shall be excused from performing any of its obligations under this Agreement that are prevented or delayed by any occurrence not within Finix’s control including, but not limited to, strikes or other labor matters, destruction of or damage to any building, natural disasters, accidents, war, riots, emergency conditions, interruption of transmission or communications facilities, equipment failure, or any regulation, rule, law, ordinance or order of any federal, state or local government authority.
    
    
    16. Survival; Severability. In the event of termination, all obligations of Sub-Merchant incurred or existing under this Agreement prior to termination shall survive the termination. If any provisions of this Agreement shall be held, or deemed to be, or shall, in fact, be, inoperative or unenforceable as applied in any particular situation, such circumstance shall not have the effect of rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to any extent whatsoever. The invalidity of any one or more phrases, sentences, clauses or sections herein contained shall not affect the remaining portions of this Agreement or any part hereof. It is the Parties’ desire that if any provision of this Agreement is determined to be ambiguous, then the rule of construction that such provision is to be construed against its drafter shall not apply to the interpretation of the provision.

AGREED AND ACCEPTED