These vcita Payment Services Terms of Service govern the relationship between vcita Inc. and any of its affiliates (“vcita”, “us”, “we” or “our”) and you, or an entity you represent (“you” or “your”), together with our Terms of Service, and our Privacy Policy (together, the “Terms”), with respect to your use of vcita’s cloud-based payment processing system and associated services (the “Payment Services”) as part of offering your products and/or services using the vcita platform, the vcita mobile application and/or any other services, applications and features offered or enabled by or through us (collectively with the Payment Services, the “Services”).

By using the Payment Services, you are accepting and agreeing (including on behalf of the entity you represent) to be bound by these Terms and the Additional Terms (as defined below) and representing that you have full right, power, and authority to enter into and perform hereunder. Please read these Terms and the Additional Terms carefully before using the Payment Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable Law (as defined below).

By using the Payment Services, you hereby fully authorize vcita to enable the Processing Services (as defined below), submit Transactions, debit your Payment Services Account (as defined below), make decisions regarding the Processing Services and request changes to the setup of the Processing Services on your behalf.

We may amend or otherwise modify all or a part of these Terms from time to time. Any revised Terms will be available on the vcita website. You are responsible for periodically reviewing these Terms. Amendments and modifications to these Terms will be deemed effective once posted online, unless otherwise noted. Your continued use of Payment Services following any modification constitutes your acceptance of the modified terms (except to the extent that other notice or consent is required by applicable Law). If you do not agree with the modified terms, you should discontinue any access to or use of the Payments Services immediately.

1. Overview

1.1 General

These Terms provide a general description of the Payment Services that vcita may provide you, including those services that allow you to accept payments from purchasers of your products or services (your “Customers” and “Transactions”, respectively). The Payment Services allow you to accept payments via credit cards and debit cards including processing cards such as Visa®, MasterCard®, American Express®, Discover® and, if applicable, ACH transactions.

1.2 Processing

Our Payment Services include payment facilitation, authentication and other financial services, transaction reporting, settlement of funds and other services provided by Payrix Solutions, LLC (the “Processor”) and their payment processors and banks (the “Processing Services”). We may add or remove Processors at any time. In addition to accepting these Terms you hereby agree and accept prior to using Payment Services to be bound by the Processor Sub-Merchant Agreement as may be amended from time to time with or without notice to you (together, the “Processor Terms”), which are hereby incorporated by reference. Your continued use of the Payment Services constitutes your consent and agreement to such additions, removals and amendments. vcita is not a party to the Processor Terms and is not liable to you with respect to the Processing Services, which are provided solely by the Processor.

2. Your Payment Services Account

2.1 Registration

In order to use the Payments Services, you must register and provide us and the Processor with certain information (“Registration”). The information you are required to provide as part of the Registration may include personal information such as name, birthdate, and government-issued identification number, physical address, email, phone number, tax identification number, URL, the nature of your business or activities, your beneficial owners, principals, etc. and we may ask for your financial information, or information we use to identify you, and other individuals associated with your account and other information required by us or by the Processor (“User Information”). We and/or the Processor may further require you to provide documentation supporting your User Information and/or documentation regarding your business activities and business risk, such as financial statements, invoices, licenses and/or government-issued identification documents. By registering to the Payment Services, you hereby authorize us to take any action together with the Processor, all in accordance with and subject to these Terms and the Processor Terms.

2.2 Verification & Underwriting

Your User Information and documentation will be used to verify and assess your eligibility to use the Payment Services. We will notify you of your account status and will, on your behalf, instruct the Processor to establish a payment account for you to be used to account for and settle amounts as part of your use of the Payment Services (“Payment Services Account”). Notwithstanding the above, we and/or the Processor may, at any time and in our exclusive discretion, reject the attempted Registration to use the Payment Services, or suspend or discontinue any use of the Payment Services, at any time and for any reason, according to ours and/or Processors internal rules, risk considerations, policies, procedures or instructions of banks, Payment Networks (as defined below), and/or under any of our Terms and/or Processor Terms, Operating Regulations (as defined below), applicable Law and regulations and any terms applicable to the Payment Services Account. We may require further information and documentation in order to validate information you provided, allow the use, or continued use, of the Payment Services or the payout of any Settlement Amounts (as defined hereunder), or in order to calculate outstanding credit exposure or risk of loss (for example, your refund and shipping policies, data on captured but unfulfilled charges, the time between charge capture and fulfillment of your Customer orders), or other records pertaining to your compliance with these Terms, the Processor Terms, Operating Regulations, applicable Laws and regulations and any terms applicable to the Payment Services Account, in which case you will promptly provide such required information or documentation, all in accordance with our and/or Processor’s internal rules, risk considerations, policies, procedures or instructions. You authorize us to retrieve information about you from our service providers and other third parties, including credit reporting agencies and information bureaus and you authorize and direct such third parties to compile and provide such information to us. You acknowledge that this may include your name, addresses, credit history, and other data about you or your representative. You acknowledge that we may use your information to verify any other information you provide us, and that any information we collect may affect our assessment of your overall risk to our business. You acknowledge and agree that we are under no obligation to provide you with a Payment Services Account, and such decisions are in the sole discretion of vcita. Please note- only businesses and other entities or persons located in the United States are eligible to apply for a Payment Services Account in order to use the Payment Services.

2.3 Changes and Updates

All User Information and documentation you provide us as part of as part of the Registration process or any subsequent inquiry or request and in connection with the Payment Services, must be complete and accurate. You must promptly update us, Processor and your Payment Services Account with any changes affecting you, the nature of your business activities, beneficial owners, principals, or any other pertinent information. We may suspend or terminate your Payment Services Account if you fail to keep this information current. You are solely and fully liable for the accuracy, consistency and completeness of the User Information and all other information you or anyone on your behalf provide us and/or the Processor as part of the Registration process or any subsequent inquiry or request. You shall be held responsible for any and all losses and/or damages directly or indirectly caused by providing incorrect, out of date, inaccurate or partial information.

2.4 Corporate Changes

You will promptly notify us in writing within three (3) days if (i) you are subject to any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, or similar action; (ii) there is an adverse change in your financial condition; (iii) there is a planned or anticipated liquidation or substantial change in the basic nature of your business; (iv) you transfer or sell 25% or more of your total assets, or there is any change in the control or ownership of your business or parent entity; or (v) you receive a judgment, writ or warrant of attachment or execution, lien or levy against 25% or more of your total assets.

2.5 Process Timing and Completion

If Your Registration process is not completed within the period of time defined by us, if you do not provide us with requested information or documentation, or if we or the Processor are unable to verify your information or documentation, we or the Processor may suspend and/or block your ability to use the Payment Services and further terminate these Terms and/or return all Transaction amounts made prior to such time to your Customers. We may notify you prior to such actions but, whether notice is provided or not, this does not derogate in any way from your responsibility to ensure your compliance with these requirements.

2.6 Dashboard

You may manage your Payment Services and enable additional features through the vcita dashboard (“Dashboard”).

2.7 Non-transferable Account

Unless agreed otherwise by vcita in writing, your Payment Services Account is non-transferable, and any change of your User Information shall require prior approval by the Processor in order to come into effect.

2.8 Rejection of Registration

You hereby acknowledge and agree that if we or the Processor decide to reject your Registration or terminate your account and discontinue your use of the Payment Services, the funds already deposited to your Payment Services Account may, based on Processor’s decision, not be paid to you, and such funds may be held by the Processor (and treated according to its procedures) and/or refunded to the relevant Customers. You assume all liability for any loss, cost or damage you may incur due to the rejection of your Registration, and release vcita and any third party from any such liability.

2.9 Use of Your Information

Our use, collection and processing of your User Information and any all other information and data provided by you or your Customers are subject to our Privacy Policy. As part of enabling and providing you with the Payment Services and your Payment Services Account you hereby permit us to and we may use and further share information you provide us with third parties such as our affiliates, Processor, competent authorities, applicable banks, payment networks such as Visa, Mastercard, American Express and Discover (“Payment Networks”).

3. Your Activities, Products & Services and Customers

3.1 Your Relationship with your Customers

You may only use the Payment Services to facilitate legitimate Transactions with your Customers. You may not use the Payment Services to send money to others, to conduct any personal transactions, or for any other purposes prohibited by these Terms. You are the merchant of record and assume all merchant responsibilities, including those under the Operating Regulations with respect to each Transaction. vcita is not responsible for the products or services you publicize, sell, provide, or that your Customers purchase using the Payment Services. You shall provide your Customers with proper ways to contact you and have sole responsibility of handling Customer complaints, resolving any Customer support issues, and shall keep vcita fully exempted from any responsibilities with respect to your Customers, products and/or services. You shall be responsible to ensure the correctness and legitimacy of your Transactions, and to research and contact your Customers prior to completing any suspicious Transactions and you shall be solely responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your use of the Payment Services. You understand and agree that vcita and/or Processor may require additional payment information from your Customer to complete a Transaction. This request shall be communicated to you by us. You further understand and agree that any failure by you to respond to such request may delay, or altogether prevent, the completion of such Transaction “Operating Regulations” shall mean the rules, by-laws, operating regulations, terms and conditions, guidelines, policies and procedures of any card association, Payment Network, or other payment methods enabled through the Payment Services used to process any Transaction, as any or all of the foregoing may be amended and in effect from time to time.

3.2 Your Website, Products & Services and Terms

While using the Payment Services you will: (i) ensure compliance of your website, services and products with applicable Laws and Operating Regulations, including proper and accurate disclosure and description of your terms including how you handle data and Personal Information, products and services, Transactions, prices, amounts charged and currencies; (ii) accurately communicate, and not misrepresent, the nature of a Transaction, and the amount of the charge in the appropriate currency prior to submitting it. If you engage in Transactions with Customers who are individuals (i.e. consumers), you specifically agree to provide consumers disclosures required by Law, and to not engage in unfair, deceptive, or abusive acts or practices (UDAAP); (iii) provide a receipt that accurately describes each Transaction to Customers; (iv) not sell products or services that are or in a manner that is unfair or deceptive, not offer or sell any products or services, or provide any information, content or material which are prohibited by Law, seen as high risk by any of the Payment Networks, or is otherwise prohibited under these Terms and/or the Processor Terms, not exposes Customers to unreasonable risks, or not disclose material terms of a purchase in advance; (v) inform Customers that vcita processes Transactions for you; (vi) maintain and make available to your Customers a fair and neutral return, refund, cancellation, or adjustment policy, and clearly explain the process by which Customers can receive a Refund (as defined below); (vii) ensure compliance with applicable Laws and Operating Regulations with respect to recurring transactions, including necessary disclosures and Customer consent prior to the recurring transaction, as well as the disclosure and method for cancelling recurring transactions; (viii) ensure compliance with the Payment Card Industry Data Security Standard (PCI DSS), the Payment Application Data Security Standard (PA DSS), and any successor standards or requirements, as applicable; (ix) ensure compliance with OFAC sanction programs, the performance of OFAC and Specially Designated Nationals and Blocked Persons checks, or any other applicable trade sanctioning regulations with respects to your Customers; and (x) ensure compliance with applicable export control laws. You have sole, exclusive and full responsibility for your products and services, the content of your website, including the publicity, text and images presented on your website. We disclaim any and all responsibility or liability in connection with any of the foregoing and may further be required to report to tax authorities, certain reports regarding the Transactions.

3.3 Fines

You are responsible for any and all charges, fees, chargebacks, refunds, fines or penalties imposed in relation to your Payment Services Account on you or us by us or any Processor or any other applicable third party from your use of the Payment Services in a manner not permitted under these Terms or Processor Terms and you shall be solely liable for any losses incurred by us or the Processor as a result of any unauthorized, fraudulent, illegal, improper or erroneous use of the Payment Services, including any use made in breach of these Terms by you (including your employees, agents, representatives or contractors) or any of your Customers and we will have no liability or obligation whatsoever in connection with any act or omission of the Processor, the bank and Payment Networks.

3.4 Enforcement

Without limiting any other right we may have under these Terms or applicable Law, we shall have the right, either directly or by providing instructions to the Processor and with no liability to you, to refuse, condition, or suspend any Transactions, block or suspend your use of the Payment Services, instruct Processor to withhold any amounts that may be payable to you or return any amount to your Customers, require you to change, add or omit content from your website to ensure compliance with the Operating Regulations, Processor Terms and these Terms; and share any information related to such activity (which may include information about you, your Payment Services Account, your Customers, and Transactions made through your use of the Payment Services) with the appropriate Processor, financial institution, regulatory authority, or law enforcement agency, consistent with our legal obligations, in the event of (i) suspected or actual fraud; (ii) your breach or suspected breach of these Terms, Processor Terms, Operating Regulations or applicable Law; and/or (iii) exposure to risks unacceptable to us.

3.5 Your Support to Your Customers

You are solely responsible for providing support to your Customers regarding Transaction receipts, product or service delivery, support, returns, refunds, and any other issues related to your products and services and business activities.

4. Bank Account

4.1 Your Bank Account

vcita and Processor will arrange to settle funds to a designated active bank account provided by you which is under your control and ownership and under your business name (your “Bank Account”). We and Processor may verify your Bank Account and maintain records thereof and your Bank Account shall be subject to Processor’s approval. You hereby warrant and represent that you are authorized to initiate settlements to and debits from the Bank Account, and that the Bank Account is owned by you and managed by a bank located in the United States.

4.2 Updating and Closing your Bank Account

Any update or change of your Bank Account shall be subject to the Processor’s approval and further compliance with these Terms and may not be in effect in relation to Transactions conducted prior to the processing of such change. You must ensure that your Bank Account remains active, in good standing and fully capable of being used in connection with the Payment Services, for as long as the Transactions conducted by you are subject to cancellation or Reversal (as defined below) (and as otherwise specified or required by the Payment Network(s) and/or Processor). You may close your Bank Account only after satisfying your obligations under these Terms.

5. Representations; Warranties

5.1 General

You hereby warrant, represent and undertake that throughout your use of the Payment Services, you and anyone acting on your behalf (and the legal entity you represent): (a) are at least eighteen (18) years old, authorized to provide the information described in these Terms on your behalf and to bind you to these Terms; (b) are authorized to conduct business in the jurisdictions in which you operate; (c) are not a resident of any country embargoed by the United States, nor on the U.S. Treasury Department’s Specially Designated Nationals and Blocked Persons List or any other applicable trade sanctioning regulations; (d) are conducting your business from and business is located in the United States; (e) will use the Payment Services only for your business and not for the benefit of any third party; (f) will use the Payment Services for commercial purposes only, and not or to permit others to use it for any personal, family, money transfer or household purposes; (g) will use the Payment Services for legal purposes only and in a lawful manner and will not use them for any fraudulent or illegal purposes or in breach of these Terms; (h) will comply with all laws, rules, and regulations (“Laws”) applicable to your use of the Payment Services and Transactions including, without limitations domestic and international Laws related to the use or provision of financial services, notification and consumer protection, unfair competition, privacy, and false advertising, and any other Laws relevant to Transactions; and (i) that all the User Information provided in your behalf and in connection with the Payment Services and Bank Account is complete and accurate.

5.2 Payment Networks Rules

In addition to the foregoing, when accepting payment card payments, you must comply with all applicable Payment Network rules; you acknowledge that each Payment Network is the sole and exclusive owner of its marks, and you agree not to contest the ownership of its marks for any reason. You further acknowledge that each Payment Network has the right to enforce any provision of its rules and to prohibit you and/or us from engaging in any conduct such Payment Network deems could injure or create a risk of injury to it, including injury to its reputation, or that could adversely affect the integrity of the interchange system, the Payment Network’s confidential information, or both. You are required to read and be aware of the Payment Network’s rules.

5.3 Automated Clearinghouse (ACH)

The ACH network is controlled and managed by the National Automated Clearinghouse Association (NACHA) and its member organizations. To the extent applicable you are required to comply with the NACHA operating rules as amended from time to time.

5.4 Restricted Businesses and Activities

You may not use the the Payment Services to enable any person (including you) to benefit from any activities identified as a restricted business or activity or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC).

5.5 Privacy

You affirm that you: (a) are now and will continue to be compliant with all applicable Laws governing the privacy, protection, and your use of any data and information that you provide us or that you access through your use of the Payment Services; (b) have provided all notices and obtained all necessary rights and consents under applicable Laws to disclose to us and allow us to collect, use, retain, and disclose any Personal Information provided by you to us or that you authorize us to collect, including such data we may collect directly from Customers using cookies or other similar means. As further provided in our Privacy Policy, you are solely responsible for disclosing to Customers that we, Processor and/or other third-party service providers process Transactions for you and may receive Personal Information from you.

5.6 Security

You are solely responsible for the security of any data on your website, your servers, in your possession, or that you are otherwise authorized to access or handle. You will comply with applicable Laws and Payment Method Rules when handling or maintaining your Customer’s data and Personal Information and will provide evidence of your compliance to us upon our request. If you do not provide evidence of such compliance to our satisfaction, we may suspend your Payment Services Account or terminate your use of the Payment Services and these Terms. You are responsible for assessing the security requirements of your business and selecting and implementing security procedures and controls appropriate to mitigate your exposure to security incidents. You are solely responsible for losses you incur from the use of lost or stolen payment credentials or accounts by fraudsters who engage in fraudulent Transactions with you, and your failure to implement security controls will only increase the risk of fraud. vcita is not and will not be liable or responsible to you and you waive any right to bring a claim against us for any losses that result from the use of lost or stolen credentials or unauthorized use or modification of your Payment Services Account, unless such losses result from our willful misconduct.

6. Fees; Taxes

6.1 Fees

Use of the Payment Services is subject to payment of the fees and charges as set forth below and which may be amended by us from time to time at our sole discretion (“Fees”). We may revise the Fees at any time. Any changes to the Fees shall be provided in the vcita Payment Services Fees  stated below. We may offer different Fees based on a number of criteria established from time to time and at our sole discretion. All Fees are non-refundable. The Fees shall be deducted from your Payment Services Account balance. You hereby authorize and direct us, Processor, banks and other related third-party service providers to enable, receive and settle any payment processing proceeds owed to you through the Payment Services. You may not grant or assign any interest in payment processing proceeds to any third party until such time as the payment processing proceeds are deposited into your Bank Account.

6.2 Taxes

You are obligated to pay all taxes, customs, duties, fees and other charges imposed by any governmental authority (“Taxes”), on the Payment Services provided under these Terms. You agree that you are responsible for determining what Taxes, if any, apply to you, and remitting applicable Taxes as required by applicable Law in all relevant jurisdictions. You agree that vcita is not responsible for assessing, collecting, reporting, or remitting any Taxes on the Payment Services provided under these Terms and/or on any payments or payouts you make to any third-party through the Payment Services. You agree that we or other third-party service providers may have tax reporting responsibilities with respect to your use of the Payment Services.

7. Settlements

7.1 General

All Transaction amounts, after deduction of the applicable Fees shall be allocated to your Payment Services Account and held by the Processor and its banking partners in pooled accounts. You may not withdraw such pooled amounts or be entitled to any interest on them. Subject to all other provisions of these Terms, the positive balance in your Payment Services Account minus all Transaction Cancellation costs and any other amount you may owe us or Processor, or otherwise deducted pursuant to these Terms (“Settlement Amounts”) shall be transferred by the Processor to your Payment Services Account once such amounts are available for settlement, and in accordance with our settlement schedule. vcita or Processor may require a holding period before making initial settlement to your Bank Account. Settlement Amounts may be paid only to an active Bank Account which is in full compliance with these Terms and the Processor Terms. You assume all responsibility and shall have no claims towards vcita in the event of any losses and damages that you or any third party may incur due to any non or erroneous settlement of a Settlement Amount, your incompliance with these Terms or to providing a wrong Bank Account.

7.2 Withholding and Settlement Schedule

We reserve the right to enforce a holding period prior to the settlement of the Settlement Amounts or change the settlement schedule at any time, including due to: (i) excessive or expected excessive Transaction Cancellations (as defined below) of any kind as determined by us in our sole discretion; (ii) in the event that we suspect or become aware of suspicious activity; (iii) if you have a negative balance on your Bank Account; or (iii) if we are required by Law or court order. We will notify you in the event we choose to exercise such rights. The Processor, banks or other financial institutions holding your Payment Services Account may also require a holding period before the settlement of the Settlement Amounts to your Bank Account. We are not responsible for any delay of any Settlement Amounts made in accordance with these Terms or if ordered by any third party.

7.3 Settlements Disputes

If you have any disputes regarding any Settlement Amounts you must notify us in writing within 45 days following the date of settlement. No disputes or complaints shall be accepted after 45 days, and following such period, the settlement of the relevant Transaction shall become irrevocable, irreversible and final.

7.4 Settlement Records

Except as otherwise required by applicable Law, you are solely responsible for maintaining your records regarding your Transactions and Payment Services Account in accordance with applicable Law. You may view and verify your balances Settlement Amounts payable to you through the Dashboard. Unless otherwise required by applicable Law, you shall be solely responsible for ensuring the accuracy of the amounts reflected in the Dashboard and the Settlement Amounts received and vcita disclaims all liability and responsibility for the accuracy and/or availability of such information. In the event of any discrepancy between the information reflected on the Dashboard and the Transactions, you must notify us immediately and we will, together with the Processor investigate the matter and exercise commercially reasonable efforts to resolve any discrepancy. You will promptly provide such with any requested information and assistance in connection with such investigation. We are and shall not be responsible for any act or omission of the Processor, any of its service providers or partners, or any financial institution, with respect to the settlement.

8. Transaction Cancellation; Dispute; Refund; Reversal

8.1 Cancellations

You shall be fully responsible for the Transactions, cancellations or cancellation requests of Transactions, including due to a Dispute (as defined below), Refund (as defined below) or the reversal or return of a Transaction conducted, facilitated or initiated by the vcita Payment Services, Payment Networks, Processors or banks (“Reversal” and together, a “Transaction Cancellation”). You shall be liable to us for the Transaction Cancellation amount and all related costs, fines, Service Fees, penalties and expenses (“Cancellation Costs”) associated with a Transaction Cancellation. We are not responsible or liable to you for any Transaction Cancellation. Both us and Processor will have the right to deduct Transaction Cancellation amounts and Cancellation Costs from any Settlement Amounts payable to you or if such deduction or collection is not possible, to issue you with an immediate payment request for the Transaction Cancellation amount and Cancellation Costs. Transaction Cancellations may require the payment of certain Fees.

8.2 Disputes

Except where we and a Customer have otherwise agreed, you maintain the direct relationship with your Customers and are responsible for: (i) acquiring appropriate consent to submit charges through the Payment Services on their behalf; (ii) providing confirmation or receipts to Customers for each charge; (iii) verifying Customers’ identities; and (iv) determining a Customer’s eligibility and authority to complete Transactions. However, even authorized Transactions may be subject to a Dispute. When applicable, you may challenge Transaction Cancellation orders initiated by a Customer (“Dispute”) through the Payment Services, by providing information and documentation according to the relevant Operating Regulations. You acknowledge and agree that we will have no liability with respect to the provision of such services. You further agree and acknowledge that the information and documentation provided will be shared with your Customer, its payment providers and other relevant financial institutes. Failure to provide such information and documentation in a timely manner may not allow you to dispute a cancelled transaction. Payment Networks may either accept or deny your challenge. Dispute amounts will be deducted by us and Processor from your Payment Services Account upon a Dispute and be credited to your Payment Services Account if your challenge is accepted by applicable banks. We are not a party to the Dispute challenging process. You may not submit a new charge which duplicates a Transaction that is subject to a Dispute.

8.3 Refunds

You will bear all costs and expenses associated with or resulting from any Transaction Cancellation, which is initiated by you and results in the reimbursement of the Customer for all or some of the amounts paid in such Transaction (“Refund”) including any Fees incurred due to the original Transaction, which shall not be refunded. A Refund of a Transaction shall be subject to the existence of sufficient balance in the Payment Services Account. Both us and the Processor shall have the right to withhold funds in the Payment Services Account and/or deduct the associated Refund amount from the Payment Services Account in order to process and pay Refunds. We may decline any Refund if we believe that there is a risk that you will not meet your liabilities under these Terms.

8.4 Reversal

A Reversal may be issued if a charge is made without the account owner’s authorization or in connection with a Restricted Business, violates the applicable Payment Method Rules, or for other applicable reasons. If a Reversal is issued, we will provide you notice and a description of the cause of the Reversal.

9. Reserve; Debt; Set-Off

9.1 Reserve Amount

You authorize us to instruct Processor to establish and maintain (by itself or by the bank) a reserve amount in order to protect the Processor or bank from actual or potential liabilities (“Reserve”). The Reserve amount will be determined by Processor in its sole discretion and may take into consideration any expenses or losses, Transaction Cancellations, Customer complaints and/or the nature of your business.

9.2 Debt Collection and Set-Off

You agree to pay all amounts due or owed to vcita, on demand. Your failure to pay amounts owed to vcita under these Terms, the Processor Terms, Operating Regulations and/or any applicable Law, is a breach, and you will be liable for any costs we incur during collection in addition to the amount you owe. We may collect and/or set-off any amount you owe us including any cost or expense (including attorney and collection agency fees) associated with such collection, by (a) instructing Processor to deduct such amounts from your Payment Services Account; (b) debiting the payment method we have on file for you.

10. Disclaimer; Limitation of Liability; Indemnification

10.1 DISCLAIMER

TO THE FULLEST EXTENT PERMITTED BY LAW, THE PAYMENT SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. VCITA ASSUMES NO LIABILITY FOR YOUR USE OF THE PAYMENT SERVICES. THE PAYMENT SERVICES MAY CONTAIN TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS OR OTHER MISTAKES AND VCITA DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NOTHING IN THESE TERMS CONSTITUTES ANY WARRANTY OR REPRESENTATION AS TO THE SUITABILITY, RELIABILITY, ACCURACY OR COMPLETENESS OF THE PAYMENT SERVICES FOR ANY PURPOSE. YOU AGREE THAT USE OF THE PAYMENT SERVICES IS ENTIRELY AT YOUR OWN RISK.

10.2 LIMITATION OF LIABILITY

NEITHER VCITA NOR PROCESSOR (NOR ANY OTHER PARTY PROVIDING ANY PORTION OF THE PAYMENT SERVICES) SHALL BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF SALES, GOODWILL, PROFITS OR REVENUES, WHETHER SUCH LIABILITY ARISES FROM A CLAIM BASED UPON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NEITHER VCITA NOR PROCESSOR (NOR ANY OTHER PARTY PROVIDING ANY PORTION OF THE PAYMENT SERVICES) SHALL BE RESPONSIBLE FOR ANY FAULTS, DELAYS OR INTERRUPTIONS IN THE PAYMENT SERVICES, WHICH ARE A RESULT OF ANY FAILURE OF THE WEBSITE, FORCE MAJEURE EVENTS, VIRUSES OR OTHER MALICIOUS SOFTWARE, BUGS, ERRORS, OR INACCURACIES OF ANY KIND, RESTRICTIONS IMPOSED BY THE GOVERNMENT OR TELECOMMUNICATIONS SERVICE PROVIDERS, OR AS RESULT OF ANY MISUSE OF THE PAYMENT SERVICES, A SUSPENSION OR OTHER ACTION TAKEN IN ACCORDANCE WITH THESE TERMS, YOUR BREACH OF THESE TERMS, INCORRECT OR INCOMPLETE USER INFORMATION AND/OR ACTS OR OMISSIONS OF THIRD PARTIES. THE FOREGOING IS IN ADDITION TO THE LIMITATION OF LIABILITY SET FORTH IN THE VCITA TERMS OF USE. VCITA’S, AND ITS THIRD-PARTY SERVICE PROVIDER’S LIABILITY UNDER THESE TERMS FOR ANY CLAIM SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU HEREUNDER DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO CLAIM.

10.3 Indemnification

You agree to defend, indemnify, and hold vcita and its officers, managers, directors, shareholders, employees, sub-contractors, agents, licensors and anyone acting on their behalf, harmless from and against any liabilities, losses, damages, judgments, fines, penalties, costs and expenses (including reasonable attorneys’ fees), as incurred, arising out of or resulting from any third-party (including Customers) claim, action, or proceeding (a “Claim”) in relation to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (ii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iii) your violation of any applicable Law; (iv) your negligent or willful misconduct, or the negligent or willful misconduct of your employees, contractors or agents; (v) any action taken by us or our service providers in accordance with or in good faith reliance upon information or instructions provided by you or any of your employees, contractors or agents; (vi) any claim by a Customer, or any obligation owed to any Customer or other third party by you, or any third party retained by you. Upon receiving a Claim, vcita shall provide you with written notice and allow you to assume control over the defense and/or settlement of the Claim, provided that vcita reserves the right to retain counsel, at its own expense, to participate in the defense and settlement of any Claim and any settlement of a Claim by you shall require vcita’s prior written approval.

11. Term; Termination

11.1 Term

These Terms, as may be amended from time to time, become effective upon your acceptance of these Terms or use of the Payment Services and shall continue to apply in full force and effect until terminated as provided herein.

11.2 Termination

You may terminate these Terms at any time by notifying us in writing. Without derogating from any other right we have, including the right to cancel or suspend your use of the Payment Services as set forth above, we may terminate these Terms and discontinue your use of the Payment Services at any time, for any reason, effective upon providing you a notice.

11.3 Effect of Termination

Upon termination of these Terms, you will cease all use of the Payment Services, complete all pending Transactions, and stop accepting new Transactions. In addition, upon termination you understand and agree that (i) all licenses granted to you by Company under this Agreement will end; (ii) we reserve the right to delete all of your information and account data stored on our servers; (iii) we will not be liable to you for compensation, reimbursement, or damages related to your use of Payment Services, or any termination or suspension of the Payment Services or deletion of your information or account data; (iv) we reserves the right to withhold any amount payable to you until we believe that the risk of Disputes or other risks with respect to your account are removed; (v) you remain liable to us for any Fees or fines, or other financial obligation incurred by you or through your use of Payment Services prior to termination; and (vi) we and Processor may withhold amounts in your account, as may be required to enforce such obligations. The provisions of all sections that are relevant to such post-termination period, together with any terms that by their nature are intended to survive such termination, shall survive the termination of these Terms, including, without limitations, Sections 5-12.

12. Miscellaneous

12.1 Priority of Terms and Regulations

In the event of any contradiction or inconsistency between these Terms, the Terms of Service and Privacy Policy, these Terms shall prevail. In the event of a contradiction or inconsistency between these Terms and the Processor Terms, the Processor Terms shall prevail. In the event of any contradiction or inconsistency between any provision of any of these Terms and the Operating Regulations, the Operating Regulations shall prevail.

12.2 Waiver of Class Action and Jury Trial

You may only resolve disputes with us on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are expressly not allowed. You further waive any right you may have to a trial by jury.

12.3 Governing Law; Jurisdiction

These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Courts of competent jurisdiction located in Delaware, USA, will have the sole and exclusive jurisdiction and venue over all controversies and claims arising out of, or relating to, these Terms.

12.4 Modification

vcita may modify the terms of these Terms, in its sole discretion, with or without prior notice to you at any time and in any manner. It is your sole responsibility to review these Terms periodically, unless otherwise required by Law, we will post a notice of the last date of update on this page. If any noticed modification to these Terms is unacceptable to you, your sole recourse will be to discontinue your use of the Payment Services.

12.5 Notices

We will use your contact details that we have in our records, in connection with providing you notices, as provided herein. You acknowledge that notices that we provide you, in connection with these Terms, will be provided via e-mail or on your Dashboard. Any notice to you will be deemed given upon the earlier of: (i) post; (ii) receipt; or (iii) 24 hours of delivery. Notices to us will be provided by you to vcita Inc., at [email protected] or through the Dashboard.

12.6 General

Neither party will be liable by reason of any failure or delay in the performance of the obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, pandemics, terrorism, and governmental actions. These Terms, and any and all rights and obligations hereunder, may not be transferred or assigned by you without our written approval. We may assign our rights and/or obligations hereunder without your consent or without prior notice to you. Subject to the foregoing conditions, these Terms will bind and inure to the benefit of the parties, their respective successors, and permitted assigns. Any assignment not authorized herein will be null and void. These Terms will be enforced to the fullest extent permitted under applicable Law. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to Law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by Law, and the remaining provisions of these Terms will remain in effect. No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

vcita Payment Services Fees

Transaction Fees: 2.90% + $0.30 per Transaction

Refunds:
Refund Fee: $0.05 per Refund
Authorization Reversal Fee: $0.05 per authorization Reversal

Account update services: $0.35 per card update

Chargebacks:
Retrieval request: $15
Chargeback Fee: $15
Arbitration: $10

Withdrawals: $0.25 per payout

Additional fees may be imposed by the bank or card brands and will be passed through as-is.

Version: 10.1.21

This Agreement is a binding written agreement between Sub-Merchant and the Payrix. Capitalized terms used in this Agreement not otherwise defined herein are defined in the Glossary. Payrix Services are subject to this Agreement, so please read it carefully.

1. Payrix Services

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

2. Account

So long as Sub-Merchant is not in breach of this Agreement, Sub-Merchant shall be granted an Account accessible through the Payrix Services. The Account shall include a record of Sub-Merchant Transactions and Fees. Payrix shall provide Sub-Merchant with credentials for access to the Account. Sub-Merchant may not disclose such codes or permit any third party to use them other than Third Party Servicers pursuant to a binding written agreement with Sub-Merchant. Sub-Merchant assumes full responsibility for the use of its Account and the access credentials thereto and shall indemnify Payrix for any and all claims, losses or other liabilities arising therefrom. Except as required to deliver or receive the Payrix Services or as otherwise required by law, Payrix shall not grant any third party access to the Account.

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

4. Prohibited Activities
It is forbidden for a Sub-Merchant to use Payrix Services to assist in any illegal activity or any Prohibited Activity. Likewise, Sub-Merchant may not use Payrix Services in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control. Without any limitations on any other Prohibited Activity, Sub-Merchant hereby affirms that no payments whatsoever for firearms or ammunition or any parts or accessories that could modify the performance or action of any actual firearms (e.g., bump stocks) will be made through the Account. Payments for these items will be taken via alternate means only. Sub-Merchant may not itself or through any other Person: (i) copy, modify, adapt, translate, reverse engineer, decompile, or disassemble, in any way, any portion of the Payrix Services and/or content made accessible by Payrix including any information, pictures, videos, text, graphics, software programs used by Payrix in connection with the Payrix Services and Content, or publicly display, reproduce, create derivative works from, perform, distribute, or otherwise use such Content, other than as permitted by Payrix in writing; (ii) make any use of the Content and/or Payrix Services on any other website or networked computer environment for any purpose, or replicate or copy the Content without Payrix’s prior written consent; (iii) interfere with or violate any other services or user's right to privacy or other rights, or harvest or collect personally identifiable information about users of the Payrix Services without their express consent, including using any robot, spider, site search or retrieval application, or other manual or automatic device or process to retrieve, index, or data-mine; (iv) defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others; (v) transmit or otherwise make available in connection with the Payrix Services any virus, worm, trojan horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (vi) interfere with or disrupt the operation of the Payrix Services, or the servers or networks that host the Payrix Services or make them available, or violate any requirements, procedures, policies, or regulations of such servers or networks; (vii) sell, license, or exploit for any commercial purposes any use of or access to the Payrix Services other than permitted by Payrix; (viii) forward any data generated from the Payrix Services without the prior written consent of Payrix; (ix) sub-license any or all of the Payrix Services to any third party; or (x) transfer or assign the Account password, even temporarily, to a third party.

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

6. Customers
Payrix is not party to any Sub-Merchant relationship with its Customer that necessitates the Transaction and Payrix shall have no obligations thereunder or in respect thereof. Sub-Merchant is solely responsible for its Product and all customer service issues related thereto including pricing, order fulfillment, order cancellation by Sub-Merchant or the Customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with Sub-Merchant personnel, policies or processes. Sub-Merchant shall post its customer service telephone number on its website. Sub-Merchant shall indemnify and hold harmless Payrix, Processor, Bank and their respective shareholders, directors, officers and employees harmless from any and all claims, losses or other liabilities arising from or in relation to Sub-Merchant’s relationship with its Customer or any Product, including any and all costs associated with the legal defense related to such claims. Each Transaction submitted or processed hereunder shall represent a payment by a Customer to Sub-Merchant. Payrix and Bank make no representation or guarantee with respect to Customer funds availability, that a Transaction will be authorized or processed, or that a Transaction will not later result in a chargeback, reversal Return or Reversal. If Sub-Merchant is a non-profit organization, it shall retain sole and exclusive responsibility for classifying itself and its Transactions, issuing any required reports and receipts, and making any required tax or other filings.

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

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

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

10. Fees
Sub-Merchant shall pay Fees for the Payrix Services. Fees shall be paid to Payrix by offsets from Transaction fund settlements to the Sub-Merchant’s bank account(s), daily ACH billing against Sub-Merchant’s bank account(s), monthly ACH billing against Sub-Merchant’s bank account(s), or any other billing method chosen by Payrix. If there are insufficient Card Transaction funds to cover Fees, or if any ACH billing is rejected due to insufficient funds in the Sub-Merchant’s bank account(s), then Sub-Merchant shall pay the Fees immediately. Platform may also have provided disclosure to Sub-Merchant concerning Fees. In the event of any inconsistency between Fees disclosed to Sub-Merchant by Platform and those disclosed by Payrix, the higher of the two shall apply.

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

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

13. Sub-Merchant Transaction Disclosure And Privacy Policy
Sub-Merchant must not: (i) Require a Customer to complete a postcard or similar device that includes the Customer’s account number, card expiration date, signature, or any other card account data in plain view when mailed; (ii) Add any tax to Transactions, unless applicable law expressly requires that Sub-Merchant be permitted to impose a tax. Any tax amount, if allowed, must be included in the Transaction amount and not collected separately; (iii) Asses a surcharge to Transactions, except as expressly permitted by, and in full compliance with the Rules; (iv) Request or use a card account number for any purpose other than as payment for its goods or services; (v) Disburse funds in the form of travelers cheques, if the sole purpose is to allow the Customer to make a cash purchase of Products from Sub-Merchant; (vi) Disburse funds in the form of cash, unless the Sub-Merchant is dispensing funds in the form of travelers cheque, TravelMoney cards, or foreign currency. In this case, the Transaction amount is limited to the value of the travelers cheques, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub-Merchant; (vii) disburse funds of cash unless Sub-Merchant is participating in full compliance with a program supported by a Payment Network for such cash disbursement; (viii) Enter into interchange or otherwise originate any Transaction for a Transaction that was previously charged back to the Bank and subsequently returned to the Sub-Merchant, irrespective of Customer approval; provided, that Sub-Merchant may re-originate an ACH Transaction up to two times within 180 days if the initial ACH Transaction was returned for insufficient or uncollected funds. Sub-Merchant may pursue payment from the Customer outside the Payrix Services; (ix) Accept a Visa Consumer Credit Card or Commercial Visa Product, issued by a U.S. issuer, to collect or refinance an existing debt; (x) Accept a card to collect or refinance an existing debt that has been deemed uncollectable by the merchant providing the associated goods or services; (x) Enter into interchange a Transaction that represents collection of a dishonored check; (xi) originate an ACH Transaction for a Customer if an ACH Transaction for that Customer has been returned as unauthorized, until a new Authorization is obtained from that Customer; (xii) Change any aspect of what goods or services it sells or how they are sold without prior written consent of Payrix and Bank; (xiii) Request a Card Verification Value2 (“CVV2”) for a card present transaction nor retain or store any portion of the magnetic stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by the Rules; or (xiv) Submit a transaction that does not result from an act between the Customer and the Sub-Merchant. Sub-Merchant shall post a privacy policy that complies with the Rules and applicable law to its website and shall honor the terms thereof.

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

15. Customer Data Security And Compliance
If Sub-Merchant collects, stores, uses or discloses any Customer Data, Sub-Merchant shall, and shall cause its Third Party Servicers to, comply with PCI DSS and all other applicable laws and the Rules relating thereto, and shall certify such compliance when requested by Payrix. Without limiting the foregoing, Sub-Merchant shall comply to the extent applicable with NACHA Rules requiring certain large ACH originators to render account numbers unreadable when stored at rest electronically. Sub-Merchant shall use only PCI DSS compliant Third Party Servicers in connection with the storage, processing, or transmission of Customer Data and shall be exclusively liable for any security breaches of its systems or any other PCI DSS violations or violations of other applicable laws or the Rules. Sub-Merchant has exclusive responsibility for security of Customer Data and other information on Sub-Merchant systems or those under its control. Sub-Merchant is aware of and shall comply with all applicable laws, Rules, and regulations in connection with Sub-Merchant collection, security and dissemination of any personal, financial, or transaction information. Without limitation, Sub-Merchant shall maintain policies and procedures to reduce the risk of loss from transactions that may pose significant fraud, regulatory, or legal risk, or may cause reputational damage to Payrix or any third party. Sub-Merchant shall maintain adequate security so as to prevent a breach of Customer Data. In the event of any actual or suspected breach of data in possession or control of Sub-Merchant or one of its Third Party Servicers, Sub-Merchant shall immediately notify Payrix thereof and also comply with all applicable laws and Rules concerning the breach. Sub-Merchant shall obtain from each Customer all consents required under the Rules and applicable law for the collection, use, storage and disclosure of any and all information provided by Customers or obtained by Sub-Merchant or its agents or Third Party Servicers under Sub-Merchant’s relationship with its Customer or otherwise. Sub-Merchant shall indemnify and hold Payrix and Bank harmless from and against any liability arising on account of or in relation to the failure by Sub-Merchant to obtain consents from Customers related to their information or cards. Sub-Merchant expressly consents for Payrix, Processor, Bank and all third parties that assist in the delivery of the Payrix Services to collect, use, store and disclose Payrix information, including that provided in the Application, information concerning Customers, Transactions and the business of the Sub-Merchant in order to supply the Payrix Services, generate reports, to reduce fraud, provide customer support, create and share aggregated data concerning the Payrix Services and assessing the risk associated with the Sub-Merchant. Payment Networks shall have the right to use Sub-Merchant name, address, and internet addresses and Sub-Merchant authorizes Payrix to provide any such Payment Networks with any of Sub-Merchant’s information requested by the Payment Network. Payrix reserves the right, at its sole but reasonable discretion, without prior consent of Sub-Merchant, to make reasonable changes to the Payrix Services or implement other risk management controls deemed necessary by Payrix or its suppliers to manage risk. Sub-Merchant shall comply with all such changes.

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

17. Refunds And Returns
Sub-Merchant agrees to process returns of, and provide refunds and adjustments for Products in accordance with this Agreement and the Rules. The Rules require that Sub-Merchant will: (i) maintain a fair return, cancellation or adjustment policy; (ii) disclose Sub-Merchant return or cancellation policy to Customers at the time of purchase; (iii) not give cash refunds to a Customer in connection with a payment card sale, unless required by law; and (iv) not accept cash or any other item of value for preparing a payment card sale refund. Sub-Merchant’s refund policies must be the same for all payment methods, and should specifically include a requirement for prompt payment of refunds in order to limit chargeback risk.

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

19. Recoupment Of Funds Owing To Payrix
Where amounts are owing from Sub-Merchant to Payrix hereunder, Payrix shall have the right to immediately, without prior consent or notice, offset or debit such amounts from funds: (i) deposited by Sub-Merchant; (ii) due to Sub-Merchant under this Agreement; (iii) held in the Reserve; or (iv) available in Sub-Merchant bank account(s), or other payment instrument registered with the Bank. Sub-Merchant’s failure to pay in full amounts that Sub-Merchant owes Payrix on demand will be a breach of this Agreement. Sub-Merchant will be liable for Payrix costs associated with collection in addition to the amount owed, including without limitation attorneys' fees and expenses, collection agency fees, and interest at the lesser of one-and-one-half percent (1.5%) per month or the highest rate permitted by applicable law. In its discretion, Payrix may make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution. Sub-Merchant hereby expressly agrees that all communication in relation to delinquent Accounts will be made as permitted under this Agreement. Such communication may be made by Payrix or by anyone on its behalf, including but not limited to a third party collection agent.

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

21. Recordkeeping
Sub-Merchant shall have exclusive responsibility for: (i) compiling and retaining permanent records of all Transactions and other data, and (ii) reconciling all Transaction information that is associated with Sub-Merchant’s Account. If Sub-Merchant believes that there is an error associated with Sub-Merchant’s Account, Sub-Merchant must notify Payrix in writing within 60 days after the suspected error occurred. Sub-Merchant’s failure to notify Payrix within such time period will result in Payrix not being responsible for investigating or effecting any requested adjustments as a result of any error. Upon five (5) business days’ notice or immediately upon the direction of a Payment Network, a Payment Network, or Payrix at the direction of a Payment Network, may conduct an on-site audit of Sub-Merchant, and Sub-Merchant agrees to cooperate with such audit.

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

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

24. Indemnification
Sub-Merchant shall indemnify, defend and hold Payrix, its Processor, Bank, Payment Networks and all third parties that assist in providing the Payrix Services, as well as Customers and their respective employees, directors, and agents harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a third party person or entity that arises out of or relates to: (i) any actual or alleged breach of Sub-Merchant representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of Payrix policies or the Rules; (ii) Sub-Merchant’s wrongful or improper use of the Payrix Services; (iii) any Transaction submitted by Sub-Merchant through the Payrix Services (including without limitation the accuracy of any Product information that Sub-Merchant provides or any claim or dispute arising out of Products offered or sold by Sub-Merchant); (iv) Sub-Merchant’s violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (v) Sub-Merchant’s violation of any applicable law; or (vi) any other party's access and/or use of the Payrix Services with Sub-Merchant’s access credentials.

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

26. No Warranties
THE PAYRIX SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. USE OF THE PAYRIX SERVICES IS AT SUB-MERCHANT’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PAYRIX SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

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

28. Direct Merchant Status
Certain Payment Networks may require that Sub-Merchant enter into a direct contractual relationship with the Bank if certain criteria is met. This criteria is met if the Sub-Merchant processes more than $1,000,000 in payment transactions through Visa or MasterCard in a twelve-month period. If this happens, Sub-Merchant will immediately become bound by the direct merchant agreements referenced in this Section. Fifth Third Bank is a Bank and acquirer for Visa, Mastercard and Discover Transactions, and Sub-Merchant’s direct relationship with Fifth Third Bank is established and becomes effective as described in the Fifth Third Bank Direct Merchant Agreement. Wells Fargo Bank, N.A. is also a Bank and acquirer for Visa, Mastercard and Discover Transactions, and Sub-Merchant’s direct relationship with Wells Fargo Bank, N.A. is established and becomes effective as described in the Wells Fargo Bank Direct Merchant Agreement. If Sub-Merchant becomes bound by one of these direct merchant agreements, the Bank providing Transaction settlement funds into Sub-Merchant’s bank account(s) (either Fifth Third Bank or Wells Fargo Bank) will be the acquirer with regard to those Transactions. Full contact information for each Bank is clearly set out on the first page of each of the direct merchant agreements referenced in this Section. Additionally, if Sub-Merchant has $1,000,000 or greater in charge volume in a rolling twelve month period, Sub-Merchant shall be converted to a direct card acceptance relationship with American Express and, upon conversion, Sub-Merchant will be bound by the then-current American Express Card acceptance agreement and American Express will set the discount and other fees payable by Sub-Merchant for American Express Card acceptance. Sub-Merchant shall comply with the Rules, including those posted at the following sites and are incorporated herein by reference: usa.visa.com, www.mastercard.com, www.americanexpress.com and www.discover.com. In the event of any inconsistency or conflict between any provision of this Agreement and the Rules, the Rules shall govern. Sub-Merchant agrees to comply with the specific requirements set forth in the American Express Card Acceptance and Brand Requirements, regardless of the amount of American Express charge volume.

29. Sub-Merchant Obligations With Respect To ACH Transactions
Sub-Merchant shall be primarily liable to Payrix for any credit entries originated and for any debit entries returned or reversed. In addition to its other obligations hereunder with respect to Transactions, Sub-Merchant agrees as follows with respect to ACH Transactions:
(i) Sub-Merchant shall prepare and submit all electronic entries to Payrix in accordance with the terms, conditions and specifications set forth herein and as Payrix may specify from time to time. Sub-Merchant shall not cancel or amend any entry after its submission to Payrix other than as permitted by Payrix in Payrix’s sole discretion.
(ii) Sub-Merchant shall comply at all times with all data security rules promulgated by NACHA. Without limiting the foregoing, Sub-Merchant shall transmit all entries via a secured electronic network or via a commercially reasonable security technology acceptable to Payrix and compliant with the NACHA Rules. Sub-Merchant shall (a) establish, maintain and update commercially reasonable security measures to maintain the confidentiality of Customers’ account numbers, routing numbers, non-public personally identifiable information, and sales information and (b) maintain processes and procedures to protect against unauthorized transactions and network infections and to verify the identity of routing numbers and receivers.
(iii) Sub-Merchant shall ensure the correctness, both as to content and form, of all entries and information submitted to Payrix. If any information is not readable, out of balance, or unprocessable, Sub-Merchant shall correct and resubmit the information to Payrix. Payrix is not responsible for detecting any errors in the transmission or content of any entries, including duplicate entries. Payrix may reject any entry submitted by Sub-Merchant. In the event that an entry is rejected for any reason, Sub-Merchant shall remake such entry.
(iv) Sub-Merchant shall not originate an ACH Transaction with respect to any Customer until Sub-Merchant has obtained from such Customer an authorization (an “Authorization”), as required by the NACHA Rules and reasonably acceptable to Payrix, to make prearranged debits from the Customer’s bank account(s). Such Authorization may be in the form of either (a) a signed written agreement from the Customer, with a copy thereof given to the Customer, or (b) an electronic record compliant with the requirements of the Electronic Signatures in Global and National Commerce Act (E-Sign) and legally binding in the same manner as are hard copy documents executed by hand signatures, with the electronic record capable of retention by print or otherwise. Sub-Merchant shall retain the original or a copy of the Authorization as prescribed in the NACHA Rules and, upon Payrix’s request, shall promptly furnish to Payrix an original or a copy of the Authorization. Should Sub-Merchant wish to change the amount or date of billing of an ACH Transaction in respect of any Customer, it shall first obtain a new Authorization.
(v) Sub-Merchant shall at all times comply with the NACHA Rules with respect to each ACH Transaction and agrees to assume the responsibilities, of an “Originator” under the NACHA Rules. Without limiting the foregoing, Sub-Merchant shall comply with NACHA Rules that require all merchants who accept ACH to have “commercially reasonable” processes in place that validate routing numbers and verify that its Customer’s bank account is in good standing. In the event that the operating rules of a local or regional clearing house, or the arrangements between Payrix and a depository institution, are more restrictive than the NACHA Rules, Sub-Merchant shall comply with such rules.
(vi) Sub-Merchant shall not originate any entries that violate the laws of the United States. Without limiting the foregoing, Sub-Merchant shall confirm, with respect to each Customer, that U.S. companies are not restricted from doing business with such Customer under rules and regulations of OFAC; and Sub-Merchant shall not originate any Transactions for Customers with respect to which U.S. companies are so restricted.

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

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

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

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

34. Amendment Of Agreement
Payrix reserves the right to modify the Payrix Services or change or add to the terms of this Agreement or any exhibit, attachment or document linked hereto at any time with electronic notice through the Account, or by such other means as it may select, in a manner and at such time as Payrix deems reasonable. Such changes may be to any of the terms hereof, including but not limited to Fees. If Sub-Merchant does not terminate this Agreement following any such change, then Sub-Merchant shall be deemed to have accepted the change. This Agreement may also be amended by written agreement between the parties hereto.

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

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

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

38. Electronic Signatures, Notices And Electronic Communication
When provided to Sub-Merchant for execution in electronic form, this Agreement and all related electronic documents, shall be governed by the provisions of the Electronic Signatures in Global and National Commerce Act. By pressing Submit, Accept or I Agree, Sub-Merchant agrees (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, (iii) that Sub-Merchant has the ability to print or otherwise store the Agreement and related documents, and (iv) to authorize Payrix to conduct an investigation of Sub-Merchant’s credit history and that of its principals with various credit reporting and credit bureau agencies for the sole purpose of determining acceptance of this Agreement and ongoing performance hereunder as described in Sections 5 and 9 of this Agreement. Sub-Merchant agrees to receive all communication under this Agreement by electronic means (which may also be by phone, and may be made by Payrix or by anyone on its behalf), including but not limited to communications regarding agreements and policies, such as this Agreement and Payrix's privacy policy. Sub-Merchant shall make sure that its primary email address is up to date in the Account and it shall check that email periodically and not less than once per week. In the event that any email from Payrix or other communication is blocked by a spam filter or other issue outside of the control of Payrix, Sub-Merchant shall be deemed to have received the communication all the same. All notices and other communications required or permitted hereunder to be given to a party to this Agreement shall be in writing and shall be sent by electronic mail to the following addresses, if to Payrix, [email protected], and if to Sub-Merchant, to the e-mail address indicated on the Account. Any notice sent in accordance with this section shall be effective upon transmission and electronic confirmation of receipt, or if transmitted and received on a non-business day, on the first business day following transmission and electronic confirmation of receipt. Any notice of default of Payrix sent to Payrix shall also be sent by courier to the address of Payrix appearing on the Site with proof of delivery.

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

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