Tib Finance Merchant Terms and Conditions

Please Note: Section 14.8 contains a binding arbitration clause and class action waiver. It affects Merchant’s rights about how to resolve any dispute with Tib Finance. 

1Definitions. All defined terms in this Tib Finance Merchant Terms and Conditions (“Agreement” / “Merchant Terms and Conditions”) will have the meaning assigned to them below or in this Agreement and will apply both to their singular and plural forms, as the context may require. Capitalized terms if not defined in this document are as defined in the Master Agreement. All references to “Exhibit” are to the Exhibits which are attached and incorporated hereto.

1.1Acquirer is a third-party entity, such as a credit card network processor or bank or other third party providing acquiring services, that receives and processes End-User Customer payment information and remits payment funds in accordance with and subject to certain policies, procedures and standards, and/or an acquiring bank that screens and accepts sales drafts and completes financial settlement for the respective sale transaction on behalf of Tib Finance or Merchant.

1.2Acquirer Agreement is an agreement between the Merchant and an Acquirer enabling the Merchant to act as a merchant or sub-merchant in transactions that are processed through the relevant Acquirer.

1.3Tib Finance Merchant ID refers to Tib Finance’s own account(s) at recognized Acquirer(s) and used by Tib Finance to process payment for Products in respect of certain payment transactions conducted through the Tib Finance Services where Tib Finance shall process the payment transaction through Tib Finance’s Merchant ID on behalf of Merchant. These Merchant Terms and Conditions shall apply to any pre-existing Merchant ID that Merchant has with Tib Finance. 

1.4Tib Finance Privacy Policy means the privacy policy displayed on Tib Finance’s website, as updated from time to time.

1.5Card is any form of credit card, debit card or payment card that (i) permits or enables payment transactions on an End-Customer account, and (ii) may be used by an End-Customer to carry out a payment transaction on the respective account.

1.6Card Association/Credit Card Company means a third party that administers card schemes including but not limited to Mastercard, Visa, American Express, JCB and Discover Network.

1.7Card Association Rules means rules, standards, regulations, practices, interpretations of any Card Association or related bodies, including but not limited to the PCI Security Standards Council.

1.8End-User Customers means third parties who place orders for and provide payment information for Products through Tib Finance Services.

1.9Gateway means the payment Gateway services as set out in Exhibit 15 herein. 

1.10Intellectual Property is all rights, privileges and priorities provided under applicable supranational, national, federal, state or local law, rule, regulation, statute, ordinance, order, judgment, decree, permit, franchise, license, or other government restriction or requirement of any kind relating to intellectual property, whether registered or unregistered, in any country, including without limitation: (a) all (i) patents and patent applications (including any patent that in the future may be issued in connection therewith and all divisions, continuations, continuations- in-part, extensions, additions, registrations, confirmations, reexaminations, supplementary protection certificates, renewals or reissues thereto or thereof), (ii) copyrights and copyrightable works, including reports, software, databases and related items, and (iii) trademarks, service marks, trade names, brand names, product names, corporate names, logos

 

v.6.3 Tib Finance Merchant Terms and Conditions (December 2023 Update)   Confidential

and trade dress, the goodwill of any business symbolized thereby, and all common-law rights relating thereto; and (b) all registrations, applications, recordings, rights of enforcement, rights of recovery based on past infringement and any and all claims of action related thereto and licenses or other similar agreements related to the foregoing.

1.11MCC refers to merchant category codes (currently four-digit numbers) used to categorize the transactions consumers complete using a particular Card.

1.12Merchant ID refers to, or to the use of, the Merchant’s own account(s) at recognized Acquirer(s) used by the Merchant in respect of payment transactions.

1.13Merchant User refers to an employee or agent of Merchant.

1.14Micro-Enterprise refers to an enterprise which employs fewer than 10 persons and whose annual turnover and/or annual balance sheet total does not exceed €2 million.

1.15Product(s) means goods, rights and software and other services provided by a Merchant as described in the merchant application or other materials provided to Tib Finance as permitted by Card Association Rules and an Acquirer.

1.16Refund is a (partial or full) reversal of a particular payment transaction of an End-User Customer, whereby the funds are reimbursed to that End-User Customer as shall be managed and issued by Merchant through the Tib Finance system.

1.17Service Provider is a provider of certain payment services and payment gateway services or related services that facilitate the payment for Products sold by Merchant.

1.18Territory means the applicable region (as defined by the Card Associations) in which Merchant is processing transactions under this Agreement.

2Status as Services Provider

          2.1Services.

In consideration of the Merchant fulfilling its obligations under this Agreement Tib Finance shall supply the Services set out herein.

Merchant agrees that Tib Finance in providing the Services hereunder through the Merchant ID does not act as a principal but acts as a facilitator on behalf of such Merchant to enable Merchant to enter into Card payments with its End-User Customers. The Merchant further agrees to allow Tib Finance to act as a facilitator on behalf of such Merchant for the purpose of processing transactions for authorization and payment.

Where Tib Finance provides the Services as a merchant of record, it is agreed that the MOR Terms set forth in Exhibit 3 shall be applicable to said transactions under the Tib Finance Merchant ID.

In the event that Tib Finance acts as a Gateway, the terms of its provision of Gateway services are as set forth in the Gateway Exhibit 15 hereto and the terms of that Exhibit, together with the provisions herein of section 14(a) ‘Arbitration’ and Exhibit 10 ‘Tib Finance Data Protection Annex’ shall expressly apply thereto. 

2.2Relationship. Tib Finance will not enter into any contracts or commitments in the name of, or on behalf of, Merchant. As a Services Provider, Tib Finance shall not take possession or control of any Products but shall only render Services. The parties shall be independent contractors.

          2.3Disapplication of certain terms. If Merchant enters into this Agreement with Tib Finance Payment

Services Ireland Limited and is not a Micro-Enterprise, or at any time ceases to be a Micro-

Enterprise, Merchant agrees that none of the provisions of Part 3 (Transparency of Conditions and Information Requirements for Payment Services) and Part 4 (Rights and Obligations in Relation to the Provision and use of Payment Services) of the European Union (Payment Services) Regulations 2018 apply to this Agreement. If Merchant enters into this Agreement with Tib Finance Payment Services Limited, and is not a Micro-Enterprise, or at any time ceases to be a Micro-Enterprise, Merchant agrees that none of the provisions of Part 6 (Information Requirements for Payment Services), nor the excludable provisions of Part 7 (Rights and Obligations in Relation to the Provision of Payment Services) of the Payment Service Regulations 2017 (UK) apply to this Agreement.  

2.4Information for Provision of Services. In order for Tib Finance to provide the Services to Merchant, Merchant will provide Tib Finance with certain information:

2.4.1For the purposes of transferring payments from Tib Finance Merchant ID to the Merchant ID, Merchant will provide Tib Finance with the relevant bank details include the bank account number and sort code (or International Bank Account Number (IBAN) as applicable). This information will be provided by Merchant in the Merchant Application. Merchant must inform Tib Finance as soon as it becomes aware that this information is incorrect or where there has been a change to any of the information previously provided.  By providing the required information to Tib Finance, Merchant will be deemed to have consented to the processing an initiation of payment transactions by Tib Finance in accordance with this Agreement on behalf of Merchant. 

2.5Processing of Transactions. Tib Finance will consider an order to be received upon receipt of an order and payment information from End-User Customers via Tib Finance Services for Products sold by Merchant and shall execute such orders, at least by, the end of the next business day following the date Tib Finance receives this order. 

3Services

          3.1Services Framework.

3.1.1Merchant may utilize the Services. Merchant shall have all required contact and other identifying information on its website for purposes of informing End-User Customers of complaint, warranty and refund rights.

3.1.2As part of performing Services under this Agreement, Tib Finance may conduct fraud checks. Merchant acknowledges and agrees that such fraud checks may delay transactions and payment collection from End-User Customers. In the event an End-User Customer seeks to cancel an order due to such delay, Tib Finance will not be liable to the Merchant for such cancellation.

3.1.3Merchant accepts that the Tib Finance Services are limited for use by Merchant and the Additional Merchant(s) and may not be resold, shared or offered to third parties.

3.1.4Merchant agrees and declares that it is contracting with Tib Finance in the course of a business and not as a consumer.

          3.2Other.

3.2.1The Tib Finance Services shall include functionality to manage and issue returns of Refunds to End-User Customers (“Refunds”) that shall be managed and issued by Merchant through the Tib Finance system.

3.2.2Merchant shall at all times be deemed bound and agrees to comply with the rules, regulations or other requirements applicable to the Card Associations, and other applicable Territory financial service regulators, associations or governing authorities including but not limited to those governing bank cards, PCI, Electronic Fund Transfer (including but not limited to NACHA, ACH, SEPA and UK direct debit) “EFT” and other alternative payment methods, in the event that such terms and conditions affect the Services provided to Merchant.  Territory shall include United States, EEA, Canadian, Australian, Israel, United Kingdom, Chile, Argentina, Mexico, Columbia, Brazil and India.  Merchant agrees to retain and provide proof of such compliance upon request and consistent with the timelines set forth by the Card Associations or regulators, including but not limited to proof of data security and PCI documentation, EFT requirements, required disclosures, End-Customer mandates and authorizations, and compliance policies and procedures including such further mandated information and guidance provided by Tib Finance on its website.  

3.2.2.1 NACHA Obligations The Automated Clearinghouse (ACH) network is controlled and managed by the National Automated Clearinghouse Association (NACHA) and its member organizations. As part of the Services Tib Finance may make such payment transactions available to the Merchant. By accepting or submitting charges including debit and credit entries) over the ACH network, Merchant is  deemed an Originator and is obligated to comply with theNACHA Operating Rules(“NACHA Rules”) at www.nacha.org/rules/operating-rulesincluding but not limited to: 

•Authorized employees

•Security procedures

•Settlement/Funding requirements

•Standard Entry Class (SEC) Codes

•ACH Exposure limits

Merchant agrees to pay the ODFI (Originating Depository Financial Institution) for any credit entry originated or debit return entry received if the ODFI does not receive payment from Tib Finance. Merchant agrees to authorize the ODFI and Tib Finance as a third party sender to originate entries on Merchant’s behalf to its End Customers’ accounts. Merchant agrees to not originate entities that violate US law.  The ODFI and Tib Finance have the right to terminate or suspend this agreement for breach of NACHA rules and Tib Finance has the right to audit Merchant’s compliance with this agreement and/or the NACHA Rules.

With respect to debits to End-Customer consumer accounts Merchant shall obtain and retain copies of the End-Customer authorizations and provide same to Tib Finance within 3 days of request by Tib Finance.  Additionally, in accordance with NACHA Rules, Merchant shall retain written authorization of settled transactions for two (2) years following the settlement date of the entry, in accordance with NACHA guidelines.

NACHA may amend the NACHA Rules at any time, and Tib Finance may amend this Agreement or make changes to Tib Finance’s payment processing services as necessary to comply with the NACHA Operating Rules. Merchant understands and accepts its role as the Originator (as defined in the NACHA Rules). Merchant agrees to obtain its EndCustomer’s written consent to debit or credit their bank account and initiate a charge over the ACH network. Such consent must be in a form and manner that complies with the NACHA Rules. In order to benefit from such service Merchant agrees to follow Tib Finance’s documentation for ACH Transactions as from time to time amended  at: For API customers: https://developers.Tib Finance.com/docs/ach-ecp; For hosted pages customers: https://support.Tib Finance.com/docs/ecp. Merchant may not, and may not attempt to, send or receive funds to or from a person, entity, or state where such transactions are prohibited by applicable Law. Merchant also agrees to maintain the security and integrity of all information Merchant collects as part of an ACH transaction. Any disputes or unauthorized charges using the ACH network may result in Merchant becoming unable to accept ACH payments.

3.2.3Changes in law, accepted industry practice, Card Association Rules, NACHA Rules, rules relating to EFT, US, EU or Canadian or other applicable Territory financial services regulations, Merchant sales volumes, Products and/or sales territories may compel Tib Finance to modify the basis on which the Services are offered or refrain from offering certain elements of the Services to the Merchant.

3.2.4Tib Finance may from time to time add or offer additional or premium functionality, services or payment types to the Services (“Enhanced Services”) that are optional and/or subject to additional fees which shall be clearly published by Tib Finance. If Merchant opts to accept and use such Enhanced Services, this Agreement shall be deemed amended to include same and Merchant shall be deemed to agree to and further agrees to pay the additional fees for such Enhanced Services. Tib Finance may deduct the relevant additional fees from Merchant’s account. Use of such Enhanced Services, may also include services and integrations provided by third parties, ("Third Party Enhanced Services"). In such cases, whether or not additional fees are to be applied, Merchant shall unless otherwise provided by Tib Finance, be deemed to accept and use such Third Party Enhanced Services subject to the standard published terms and conditions of the appropriate third party provider including but not limited to privacy and data security provisions. 

3.2.5Tib Finance may provide and license to Merchant for purposes of this Agreement Tib Finance customizations and payment thereof shall be in accordance with the payment provisions set out in applicable Statement of Work or this Agreement.

3.2.6In the event that Merchant’s ‘BuyNow’ transaction pages come under interruption caused by third parties, Tib Finance shall be entitled to immediately suspend service to Merchant until such interruption ceases. Tib Finance shall endeavor to the extent possible to provide Merchant with advance notification of any such suspension of service. Tib Finance shall not be liable to Merchant for any loss of transactions or other loss or damage caused by such interruption of service. 4Merchant Obligations

4.1Product Obligations. Merchant is solely responsible for the promotion, marketing and support of the Products. Merchant’s promotional and support materials will accurately describe the Products and their use in all material respects. Merchant also will provide commercially reasonable post-distribution support to End-User Customers and post customer service information prominently on its website. Merchant will be responsible for providing and solely liable for the content of all technical and product information for End-User Customers for the Products. Merchant will be responsible for ensuring that all Products match the versions and descriptions of the Products as marketed by the Merchant as applicable. Merchant is solely responsible to provide warranty, maintenance, technical or product support services for the Products. Merchant is solely responsible to End-User Customer for any liabilities related to Merchant’s fulfillment of Product orders, EULAs entered into by End-User Customer, or use of Products by End-User Customer.

4.2Disclosure of Refund Policies. Merchant shall, during the transaction for which a Refund may be sought, make known to End-User Customer clearly in writing during the checkout process before the End-User submits a transaction   Merchant’s Refund policy and procedures, including

any RMA (Return Merchandize Authorization) required and fees assessed. Merchant is responsible for any charges or costs incurred by reason of Refund, such as shipping fees.

Merchant’s Refund policy shall be in compliance with all relevant Card Association rules, FTC, Canadian, and European Union and applicable Territory requirements and there shall be no differentiation in the treatment of refunds between various Card schemes.

4.3 Invoicing to End-User Customers. Where an invoice is required to be delivered in the name of the Merchant, Merchant shall ensure that a legitimate electronic version is either issued promptly in its name or immediately made available to End-User Customer through the Services.

4.4Precedence. In the event of any inconsistency between this Agreement and the standards and regulations issued and as revised from time to time by any relevant Card Association or Acquirer, such standards and regulations shall take precedence over this Agreement. The standards and regulations of the Card Associations, such as Mastercard, Visa and American Express, are expressly included, details of which may be accessed at the websites for each. In the event of any disparity or conflict between the provisions of this Agreement and any additional agreement(s) as referred to in Exhibits 1 to 16 of this Agreement, such additional agreement(s) shall override and take precedence over this Agreement, however, as between the parties themselves, this Agreement shall take precedence.

4.5Standards. Card Association Rules for Merchant’s credit card acceptance policies and procedures may require Merchant to make changes to its Web site and general practices to ensure that they are in compliance with Card company standards including guarding the use of their marks. Merchant shall permit Tib Finance to monitor its general activity and use of such marks.

4.6Settlement and Currency Conversion. Merchant authorizes Tib Finance to receive funds from Acquirers on Merchant’s behalf for settlement to the Merchant and that Tib Finance acts as Merchant’s agent with respect to settlement of funds. Tib Finance shall make commercially reasonable efforts to settle Merchant’s funds due from Acquirers, at the latest, by the end of the next business day following the date Tib Finance receives the funds from Acquirers or as otherwise agreed by the parties.  Should the currency of settlement require exchange conversion, Merchant authorizes such funds to be passed to a currency conversion service that may then forward the settlement funds in the converted currency directly to Merchant. Merchant acknowledges that the applicable exchange rates to be applied will be determined and calculated by the relevant currency conversion services. Such placement of funds with the currency conversion service shall be deemed in full satisfaction of Tib Finance’s obligations to Merchant with regard to settlement.

          4.7Additional Acceptances and Consents. Merchant acknowledges and agrees:

4.7.1To comply with all applicable Credit Card Company standards, Card Association Rules, FTC regulations, best practices and guidelines, and PCI standards and requirements as amended from time to time.

                      4.7.2That the relevant Credit Card Company is the sole and exclusive owner of its marks.

                      4.7.3Not to contest the ownership of any relevant Credit Card Company marks.

4.7.4To accept the responsibility to continue to review and be bound by Card Association Rules as published on the Credit Card Company websites including relevant best practices and guidelines in order to determine whether any amendments or changes have occurred.

                      4.7.5To accept that Card Associations have the right to enforce such provisions against

Tib Finance and the Merchant including the right to prohibit Merchant from engaging in

any conduct that any Card Association in its sole discretion deems likely to injure or cause risk of injury to it or its reputation or that may adversely affect the integrity of the credit card interchange system or confidential information as defined in the Card Association Rules. Merchant further agrees not to take any action that could interfere with or prevent the exercise of such right by any Card Association.

4.7.6That Card Associations, Acquiring Banks, Credit Card Companies may terminate or suspend at their own discretion and without notice or penalty, Merchant’s participation in the Services and/or Merchant’s use of credit company marks.

4.7.7That the practices, rules, terms and conditions of the payment industry and Card Association  Rules  are  under  constant  evolvement  and  development  and  that  the provision of the Services is strictly conditional on the Merchant agreeing to be bound thereby.

4.7.8That with respect to any security obligations including PCI requirements, Tib Finance shall not be liable to Merchant, End-Customer User or any other party for any malicious, intentional or unintentional loss, disruption, corruption, redirection, interception or interruption of any transaction or flow of data including End-User Personal Data that occurs outside the scope Tib Finance Services.

4.7.9That certain payment methods offered by certain Service Providers may not be regulated by Card Associations or legislation. Merchant accepts that Tib Finance shall not be responsible for any shortfall or payment of sums due from such Service Providers to Merchant in respect of their default, non-performance or insolvency.

4.7.10Merchant acknowledges that the relationship arising from this Agreement is between Merchant and Tib Finance and that in no event is any third-party beneficiary status created with any Merchant-affiliated party, or vendor of any marketplace operated by Merchant (“Marketplace Vendor”) notwithstanding any agreement between Merchant and Tib Finance or direction by Merchant to Tib Finance as to allocation of payment of settlement funds or any agreement by Merchant as to allocation or payment of fees with its affiliate(s) or Marketplace Vendor(s). Merchant will defend, indemnify and hold Tib Finance and its affiliates, directors, officers, employees, and agents harmless against any Claims (as defined in Section 9 hereof) against Tib Finance arising out of any relationship between Merchant and affiliate or Marketplace Vendor. Merchant shall be liable to Tib Finance without limitation for any negative balance or any other liability to Tib Finance of any of Merchant’s Marketplace Vendors and Tib Finance shall be entitled at its sole discretion to offset, satisfy or reduce any such negative balance or other liability from amounts (i) due or to be settled by Merchant from Tib Finance, (ii) being held by Tib Finance as a reserve or holdback amount, (iii) in Tib Finance’s possession on behalf of Merchant or, in the alternative, Tib Finance may make demand upon Merchant which Merchant agrees to satisfy within two (2) business days from said demand. 

4.7.11Merchant accepts and acknowledges that Acquirer(s) are expressly authorized and instructed by Merchant to make payment to a bank account managed by Tib Finance, and that by payment of any remittance by Acquirer to such bank account, Acquirer is fulfilling its obligations to transfer remittances totaling such sum to Merchant and that Acquirer shall have no further liability in respect of that sum to Merchant.

4.7.12Merchant is solely responsible for obtaining the consent of End-User Customers with respect to transmission and storage of personal information (as defined by the jurisdiction of the End-User) and recurring billing transactions and it is Merchant’s duty to advise End-User Customers that Tib Finance passes data records containing personal information outside the European Union in accordance with Tib Finance’s privacy policy.

Merchant shall obtain in writing the End-User’s/cardholder’s consent to storage and use of his/her applicable Card information for the purpose of future merchant-initiated or cardholder-initiated transactions as required under the Card Association Rules and the data protection/privacy regulations of the applicable jurisdiction.

4.7.13Merchant shall not hold nor store any CVV or magnetic card strip information under any circumstances.

4.7.14Merchant agrees that for determination of its compliance with its obligations under this Agreement and any Acquirer agreement that the Acquirer or Card Association may have access to Merchant’s information and systems for purposes of audit.

4.7.15Should Merchant seek to provide any wallet services as defined by the Card Association Rules, it shall first notify Tib Finance in writing, and shall not transmit any such transactions until it has been registered with relevant Card Association(s) and Acquirer(s), provided Tib Finance with written proof thereof, including compliance with any related PCI requirements. Furthermore, Merchant shall obtain and record the consent of all End-Customer Users for the use of any Card for staged wallet services, and ensure that all transactions are in accordance with Card Association Rules and all Acquirer requirements, including as required the transmission of the appropriate merchant verification value (MVV).

4.7.16Merchant accepts and acknowledges that it shall at all times remain liable and responsible for all fees owed to Tib Finance including all penalties, imposts and fines levied as a result of Merchant’s acts and omission, and for all Chargebacks and refunds raised on Merchant’s account. 

4.7.17Merchant consents to Tib Finance’s provision of Services through its Service Providers and partners and to the provision of relevant Merchant data and End-User Customer Information to such parties for the sole purpose of providing the Services. 

4.7.18American Express.   The provisions of Exhibit 2 shall apply with respect to all transactions involving American Express.

4.7.19Merchant accepts and acknowledges that Tib Finance may pass on any fines, penalties, assessments or damages relating to any data breaches by Merchant including but not limited to those set or imposed by any Card Association and/or Acquirer for any reason, and notwithstanding any contrary language herein exempting Merchant from any consequential or other damages. 

4.7.20Tib Finance shall have the right to perform credit checks and access Merchant’s credit reports and other credit-related information, including reports and information relating to Merchant’s beneficial owners, both periodically and/or upon the occurrence of a negative account balance or excessive Chargebacks or duress on Merchant’s account. 

4.7.21Merchant consents to Tib Finance provision of services through its Service Providers and the sharing of Merchant’s and its customer’s information and data with such Service Providers as needed to provide the services.

4.7.22Merchant consents without further writing to the use of a Service Provider for payout in a particular currency or payout method which Tib Finance does not offer or if necessary for payment that Merchant has requested. Tib Finance responsibility shall end with the payment to said third party.

4.7.23Merchant consents to payment, unless prohibited by law or regulation, from the Tib Finance bank account(s) in a region (as defined by the Credit Card Companies) different than that of the Merchant submitted the transaction for processing.

4.7.24Merchant consents to Tib Finance commingling Merchant funds into a dedicated safeguarded general merchant funds account(s) for all merchants in the region where Merchant is processing transactions.

4.7.25Merchant consents to the use by Tib Finance of web bots and other automated technologies to track product and other information appearing on Merchant’s web properties in accordance with legal and payment industry requirements and shall not take steps to prevent or disable such tracking. Merchant waives all and any claims in respect of such tracking by Tib Finance.  

4.8Prohibited Items. Merchant shall comply with Tib Finance’slistofprohibiteditemsas set forth on its website currently at https://home.Tib Finance.com/legal/#prohibited; any account found in Tib Finance's sole discretion to be in contravention of this list or as otherwise prohibited by any relevant Acquirer may be terminated or its account suspended immediately without notice by Tib Finance. Such list may be updated and revised by Tib Finance from time to time, upon notice given by email and/or as published on the Tib Finance website. If following the revision of such list Tib Finance is no longer able to support the sale of Products, it may immediately terminate this Agreement or suspend the Merchant’s account upon giving written notice.

4.9Site-Rating Authorities.  Merchant will make commercially reasonable efforts to avoid linking to websites and services that are denoted as posing high risk by reputable site-rating authorities, including McAfee, Symantec and Google. In the event of such linking, Merchant shall take prompt action to have such links removed. Furthermore, Tib Finance shall not be liable to Merchant for any claims, loss or damage caused by any high risk designation applied by such site-rating authorities to any Tib Finance-managed web domain as a result of the act, behavior or omission of any third-party Merchant.

4.10Minors. Merchant will make commercially reasonable efforts to not solicit as potential End- User Customers individuals who are less than 18 years old. Tib Finance reserves the right to refuse the Services in transactions with minors.

4.11General Business Information. Merchant shall maintain and make available at all times to Tib Finance and End-User Customers including through its main web site accurate details of its full geographic addresses, business names, including complete telephone, email contact details, and customer support details, together with its delivery, refund and privacy policies and all such other information that may be required by applicable law and/or Card Association Rules.

4.12Marketing Practices. Merchant will comply with US state and federal anti-spam laws, including the CANSPAM Act and equivalent EU, Canadian and international legislation. Merchant shall also comply with and be bound by Tib Finance’s privacy policy as set forth in the Tib Finance website, as may be amended from time to time.

4.13Amendments. Merchant is responsible to regularly monitor the Tib Finance website or Merchant’s account on the Tib Finance console for notice of changes to the Tib Finance Services and fees. Merchant shall be notified in advance of such changes in Tib Finance Services and fees. Fees may be updated and revised by Tib Finance without written consent of Merchant upon 60 days notice as provided herein, or added/revised without prior notice if changes are necessitated by the Card Associations, an Acquirer or regulatory or other governing bodies including amendment of governing law or regulation. By continuing to use the Tib Finance Service or not notifying Tib Finance in writing of any objection within 60 days thereafter, Merchant will be deemed to have accepted such changes and/or additions. In the event that Merchant does object to any aforesaid change, unless Tib Finance agrees in writing otherwise,  this Agreement shall terminate upon the expiration of the aforesaid 60 day period  but remain subject to the surviving provisions of this Agreement including but not limited to payment of fees owed, maintaining a Rolling Reserve, liability for Chargebacks for itself and any affiliates (if authorized by Tib Finance), Refunds and Fines from Card Associations and/or other governing bodies.

4.14Responsible Party. Merchant will hold itself out as the sole responsible party vis-а-vis End-User Customers in relation to the Merchant Products and/or their functionality, and Merchant will in no manner represent that Tib Finance is a guarantor or responsible party for those products, or otherwise involve Tib Finance in an End User Customer or other third party dispute relating to the transaction, delivery or functionality of a product.

4.15Safeguarding Access. Merchant accepts full responsibility for safeguarding the log in and password information relating to Merchant account and accepts any fiduciary duties that may result from such access. Merchant agrees that Merchant is fully and solely responsible for the use of the Tib Finance Services by Merchant users.

To maintain the security of Merchant’s use of Blue Snap Services, Merchant shall:

                      4.15.1not allow anyone other than Merchant Users to have or use Merchant’s log-in and

password details on the Tib Finance console and comply with all reasonable instructions Tib Finance may issue regarding security of same.

4.15.2keep Merchant details up to date to enable Tib Finance to communicate with Merchant and to accept instructions. 

4.15.3take all reasonable steps to protect the security of the devices through which Merchant Users access the Tib Finance Services (including, without limitation, using pin and/or password protected personally configured device functionality to access the Tib Finance Services and not sharing devices with those not authorised as Merchant users).

4.15.4be solely responsible for obtaining accurate credit card information and authorization from End-User Customers.

4.16Merchant shall inform Tib Finance of any misappropriation or unauthorised use of the Merchant’s account without delay. 

4.17The following provisions shall only apply to Merchants based in the EEA and UK: 

4.17.1Provided Merchant notifies Tib Finance of any unauthorized use of Merchant’s account resulting from misappropriation, and subject to the paragraph immediately below, Tib Finance will return the amount of any sums paid out pursuant to any unauthorised use of Merchant’s account and any related interest and charges, but Tib Finance will have no further liability to Merchant. 

4.17.2Merchant will be liable for a proportion of the sums due pursuant to any unauthorized use of Merchant’s up to a maximum of €50 where such unauthorized use arose due to misappropriation. Merchant’s liability for sums up to a maximum of €50 will not apply where the unauthorised use of Merchant’s account was not detectable by Merchant in advance of the unauthorised use, except where Merchant is found to have acted fraudulently. Merchant’s liability for sums up to a maximum of €50 will also not apply where the loss was caused by an act or omission of an employee, agent or branch of Tib Finance or entity to which Tib Finance outsources certain activities to.  

4.17.3Notwithstanding the aforesaid, Merchant will be liable to Tib Finance for any and all losses, costs and expenses suffered or incurred by Tib Finance as a result of unauthorized use of Merchant’s account in circumstances where the Merchant acted fraudulently or the Merchant has, with intent or negligence, failed to comply with its obligations under this Agreement in relation to the safeguarding of access to Merchant’s account. 

4.17.4If Merchant is not a Micro-Enterprise, as defined in relevant regulations, then this section will not apply and Merchant’s liability under this section 4.17 will not be limited.

4.17.5Unauthorised Payment Transactions. Merchant shall be entitled to the rectification of an unauthorized or incorrectly executed payment transaction by Tib Finance provided Merchant informs Tib Finance without undue delay upon becoming aware of an unauthorized payment transaction, and in any event within 13 months of the execution of the relevant unauthorized payment transaction. Tib Finance will refund Merchant the amount of the unauthorized payment transaction immediately, and in any event not later no than the end of the business day immediately following the date that Tib Finance is notified of the transaction, except where Tib Finance has reasonable grounds for suspecting fraud. Tib Finance will restore the Merchant ID to the state that it would have been if the unauthorized payment transaction had not occurred and shall ensure that the credit value date for Merchant ID is no later than the date the amount was debited.  

4.17.6Incorrectly Executed Payment Transactions. If Merchant informs Tib Finance that a payment transaction has been incorrectly executed, Tib Finance will make reasonable efforts to trace the relevant funds and notify you of the outcome. Tib Finance shall, as soon as commercially practicable, refund the amount of the incorrectly executed transaction and will restore the Merchant ID to the state in which it would have been had the incorrectly executed transaction not taken place, or, where the payment transaction has yet to be executed, Tib Finance shall ensure the payment transaction is executed correctly. Tib Finance shall not be liable for correcting an incorrectly executed payment transaction if it can prove that the Merchant ID has received the funds in accordance with the instructions accompanying the payment transaction. 

4.18Disclosure of Information and Investigations. Merchant shall provide full and unrestricted disclosure within 48 hours with respect to any written request by Tib Finance relating to the investigation of any single or mass refund request, Chargeback, suspected fraud matter, unauthorized or unlawful transaction, money laundering and/or criminal offence, or any documentation or information required by any relevant Acquirer. Such disclosure may include but not be limited to the identity of any contracting parties, transaction records, bank records and other financial information relating thereto, and Merchant shall provide such further disclosure and assistance as may be reasonably be required by Tib Finance and/or its processors, acquirers and any relevant law enforcement authorities in order to properly investigate such matters.

4.19Credit Card Transactions.

4.19.1 Except where allowed by Card Association Rule and/or law, Merchant accepts that it shall not set any surcharges of its own for accepting any Card transactions other than allowed by Card Association Rules or law.

4.19.2Merchant accepts that prior authorization must be obtained for recurring charge orders.

4.19.3Card transactions passed by Merchant shall represent a bona fide sale or rental of merchandise or services that have not previously been submitted.

4.19.4Merchant shall not pass any transaction that it has notice or knowledge of being fraudulent or unauthorized, or intercept any transaction data.

4.19.5Merchant shall not add any improper or invalid tax to a transaction, nor make any alteration to the transaction information without the authorization of the respective cardholder, or provide incomplete or misleading information relating to a transaction.

4.19.6Unauthorized, irregular, fraudulent charges, or charges made on a non-valid card, or excessive charges beyond stated price, payment for undelivered products or charges issued through hacking are not collectible and shall remain the full responsibility of Merchant and Tib Finance shall be fully indemnified by Merchant in respect thereof.

4.19.7Unless required by law, Merchant shall not process any transactions or receive any payments on behalf of another party, or redirect any payments to another party.

4.20EChecks. ECheck transactions may only be submitted and processed if supported by prior authorization from account holder. Such authorization must be securely stored.

4.21Financial, Compliance and Security Audits. Merchant shall allow Tib Finance and/or any relevant Acquirer to conduct financial, compliance, and/or security audits upon 7 days written notice or 24 hours notice including but not limited to in the case of suspected fraud, unlawful or prohibited transactions, security concerns or security breach. Such audits shall include the right to examine all relevant accounts, books, financial data, bank records, customer details, and contact creditors, clients and partners, and security policies and records, server hosts, security certificates and server records and out-sourced arrangements. Merchant shall promptly provide access to all necessary documentation, and give full cooperation and disclosure as required to complete such audits.

Merchant shall at all times maintain sufficiently robust security practices to secure End-User Customer data, and provide details of its security policies upon written request and cooperate with Tib Finance in the event of any major payment security incidents including data breach.

Security measures should be periodically tested to ensure their effectiveness and Merchant shall comply with any reasonable requirement made by Tib Finance or any relevant Acquirer concerning security measures. Tib Finance may decline to process transactions in the event that it has concerns over security issues relating to the Merchant and may terminate this Agreement if it believes that the Merchant does not have sufficient security measures in place to protect payment data and End Customer Information.

4.22Authentication. Certain transactions may require the use of authentication and verification services including measures as may be required by the European Banking Authority or other applicable regulators. Merchant acknowledges and accepts that failure to accept such services may result in rejection of transactions or higher charges being levied by in respect of such transactions, the cost of which may be charged to and deductible from Merchant. 5Payments and Fees

5.1.1Reserves are sums that Tib Finance may in its sole discretion without prior notice hold back in reserve against Merchant’s account during exposure or potential exposure to high frequency of refunds or Chargebacks or following significant variations in monthly sales volume, so as to ensure there are sufficient funds held in Merchant’s account to meet potential Refund and Chargeback requests. Should Tib Finance be subject to, or have reasonable cause to believe that it may be exposed to any negative Merchant account balance, or any claims, fines, penalties, non-compliance charges or additional fees levied by any Acquirer, Card Association or legal authority due to Merchant’s acts or omissions, or as a result of default, breach or termination of this Agreement, fraud, money laundering, illegal, unauthorized or improper actions of Merchant and/or Merchant’s customers, Tib Finance may in its sole discretion and without prior notice holdback in reserve additional sums for such period as it deems necessary to secure and make whole its financial position.

5.1.2Tib Finance may in its sole discretion set a six-month rolling Reserve from each payment due to Merchant to meet potential Refunds and Chargeback requests. Such Reserve may be increased in period and amount where Tib Finance determines there to be a significant risk of exposure, or in order to be at a level and coterminous with such reserve period set by Acquirers used to process Merchant’s transactions through Tib Finance. A Reserve may also

be imposed for any business category deemed by Tib Finance or any relevant Acquirer to be of a high than usual risk, such as travel and events, and may also be imposed for financial exposure or liability of Tib Finance in respect of Merchant, including but not limited to fines, assessments, indemnification obligations, fraud losses and handling, 

5.1.3Should there be insufficient funds in Merchant’s account at any time to provide any required Reserve, Tib Finance shall be entitled to issue a written demand for the required funds. If within 48 hours, Merchant fails to provide such funds or provide Tib Finance with a form of guarantee for payment that is acceptable to Tib Finance, then Tib Finance may immediately suspend Merchant’s account or terminate this agreement. Should Tib Finance suspend Merchant’s account, Tib Finance shall inform Merchant of the suspension and the reasons for the suspension in accordance with section 14.3 of this Agreement. Tib Finance will endeavor to inform Merchant in advance of Tib Finance suspending Merchant’s account. When this is not possible, Tib Finance will inform Merchant, at the latest, immediately after the suspension of Merchant’s account. Tib Finance will lift any suspension of Merchant’s account as soon as sufficient funds are credited to Merchant’s account.

5.1.4Tib Finance may place Merchant into Tib Finance’s Excessive Chargeback Management

Program or under a Card Association’s excessive chargeback requirements program if in Tib Finance’s or Acquirer’s sole discretion there is undue commercial risk or excessive volume of Chargebacks. Merchant shall be liable in respect of all charges relating to such programs and for any fees, assessments, penalties or fines levied by the Acquirer or Card Association in relation to said excessive chargebacks. Such fees may include the cost of enrolment in additional chargeback management programs that shall be payable by Merchant. 

5.1.5Merchant acknowledges and accepts an Acquirer may also in its sole discretion set or require a reserve to be held in respect of the Merchant’s account upon such terms as it sees fit and Merchant shall consent to any such reserve being imposed. 

5.1.6Tib Finance and/or an Acquirer may in its reasonable discretion set or require a reserve to be held in respect of Merchant’s account if in their reasonable belief they may be exposed to liability, fines, imposts, penalties, losses or chargebacks as a result of Merchant’s acts, omissions or products. 

5.1.7Tib Finance may charge a fee in respect of any fine, penalty or non-compliance charge, imposed on Merchant by any Card Association, Acquirer or regulatory body, which is required to be discharged through or by Tib Finance, or levied upon Tib Finance as a result of Merchant’s acts or omissions. Such fee shall be 8% of the relevant total fine, penalty and/or non-compliance charge. 

5.2Right of Set Off, Debit and Invoice. Tib Finance may in its sole discretion, with or without invoice, setoff against Merchant funds or sums in Tib Finance’s possession and/or future Merchant funds or sums coming into the possession of Tib Finance under this Agreement, (i) fees, expenses and other amounts owed or due to Tib Finance under this Agreement, (ii) payments that are charged back or disputed by End-User Customers, (iii) third party fees  incurred in the course of providing the Tib Finance Services, and also (iv) any fines, penalties, non-compliance charges and/or fees imposed on Tib Finance by any relevant authority or Acquirer due to Merchant’s act, default or omission, including sums chargeable in relation to any Tib Finance or Card Association Excessive Chargeback Management Program. If Merchant has more than one account with Tib Finance, Merchant consents to Tib Finance setting off amounts or sums of one account against amounts or sums owed by another account.

If the amount of Merchant’s funds held by Tib Finance is insufficient to meet Merchant’s obligations or cover Tib Finance’s financial exposure regarding the Merchant’s account, to the extent permitted by law, Tib Finance may obtain collection of all sums due from Merchant to Tib Finance including sums required by way of refunds, Chargebacks, Holdbacks or Rolling Reserves by debiting such sums directly from any bank accounts used or registered by Merchant for payment from Tib Finance (“Bank Accounts”). Merchant consents to and authorizes Tib Finance to initiate a debit of its Bank Accounts in such circumstances and shall provide the necessary signed mandates and authorizations upon demand to permit such deduction(s). Merchant’s failure to discharge such amounts on demand shall be a material breach of this Agreement and Merchant will be liable for Tib Finance’s costs of collection in addition to the sum owed including without limitation, attorneys’ fees, expenses, costs of any arbitration process or court fees, and collection charges.

Merchant further agrees that notwithstanding section 4.13 herein or any other provision to the contrary, Tib Finance immediately may pass through, set off and/or net out fees to Card Associations, Acquirers or third parties used by Tib Finance to process Merchant’s transactions including but not limited to increases in interchange charges, new fees and increases to existing fees.

5.3Tib Finance shall not be liable if any End-User Customer continues to make use of the Product(s) following any Refund, cancellation or Chargeback. Tib Finance shall provide information and assistance as reasonably requested by the Merchant to pursue the unauthorized use of such Product(s).

5.4Held Funds. Should Tib Finance hold funds that are due to Merchant under this Agreement that it is unable to deliver because Merchant has not provided its current contact information or Merchant's account has become inactive or dormant but not terminated, it is agreed that Tib Finance may assess account maintenance, inactivity or dormant account fees as applicable until any balance is eliminated or Merchant makes contact to obtain the balance remaining at the time of contact less any applicable deductions, all subject ultimately to requirements of law.

5.5Interest on Negative Account Balance. Tib Finance may charge interest at the rate of 1.5% per month or the legal maximum permissible interest rate, on any negative balance on the Merchant’s account. Should Tib Finance apply the maximum permissible interest rate, such charge will apply immediately and without notice to Merchant. Merchant will be informed of any increased interest rate being applied via the Merchant’s account on the Tib Finance console. Where Tib Finance introduces a change to the rate of interest that is more favorable for Merchant, Tib Finance may implement such change without notice to Merchant. Changes to the applicable interest rate will be implemented and calculated by Tib Finance in a neutral manner that does not discriminate against Merchant.

5.6Investigations of Fraud and Suspected Fraud. Tib Finance may charge the costs of investigating and handling cases of fraud and suspected fraud involving the Merchant at a set case fee of $7,500 plus $1,000 per hour. 

6Intellectual Property

           6.1Licenses.

6.1.1Subject to the terms and conditions of this Agreement, Tib Finance hereby grants Merchant a non-exclusive, non-transferable, non-sub-licensable license, during the Term, to use Tib Finance’s trademarks (the “Tib Finance Trademarks”) in the Territory solely in connection with Services and as approved by Tib Finance. All goodwill resulting from Merchant’s use of the Tib Finance Trademarks will inure solely to the benefit of Tib Finance. Except for the limited license granted herein, nothing herein shall grant to Merchant any right, title or interest in the Tib Finance Trademarks.

6.1.2Subject to the terms and conditions of this Agreement, Merchant hereby grants Tib Finance a non-exclusive license, during the Term, to use Merchant’s trademarks (the “Merchant Trademarks”) solely for the performance of Services by Tib Finance in accordance with this Agreement. All goodwill resulting from Tib Finance’s use of the Merchant Trademarks will inure solely to the benefit of Merchant. Except for the limited license granted herein, nothing herein shall grant to Tib Finance any right, title or interest in the Merchant Trademarks.

           6.2 Ownership.

6.2.1Tib Finance retains all right, title and interest, including all Intellectual Property rights relating to the Services (and any derivative works or enhancements of any of the following), including to all software, technology, data, databases, information, content, materials, guidelines and documentation, including any custom works and designs provided by Tib Finance to Merchant hereunder. Merchant does not acquire any right, title or interest therein, except for the limited license expressly set forth in the Agreement. Merchant agrees not to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services.

                      6.2.2Merchant retains all Intellectual Property rights in and to the Products.

                      6.2.3Any rights not expressly granted in this Agreement are reserved and withheld.

           6.3Customer Data. Merchant may not use any personally identifiable information included in End-

User Customer information received by Tib Finance in performing Services hereunder (“End-User

Customer Information”) for any unlawful or improper purpose and shall indemnify and hold Tib Finance harmless from any claim for damages and costs related to Merchant’s use or storage of such End User Customer Information.

Merchant shall follow all relevant Card Association rules and NACHA rules relating to security of transaction data, reporting and notification of data loss or breach and shall not disclose or divulge any End-User Customer Information obtained in connection with any credit card transaction except as required by Card Association Rules, NACHA Rules, or law.

Whenever End-User Customer Information comprising Card data is transmitted, processed or managed through the Tib Finance Services, Tib Finance shall be responsible for the proper security of such data in accordance with all relevant PCI-DSS requirements as in force at the time. Likewise Merchant shall be responsible for the proper security of any such End-User Customer Information that it receives in accordance with all relevant PCI-DSS requirements as in force at the time and applicable law.

Merchant shall be in compliance with all relevant PCI-DSS requirements and upon written request to provide Tib Finance with up-to-date copies of applicable PCI Self Assessment Questionnaires, Attestation of Compliance documentation, and results of PCI-related network and penetration tests.

7Additional Covenants

           7.1Data Privacy and Security.

7.1.1With respect to any End-User Customer Information received, accessible, or accessed by Merchant, Merchant will comply with applicable law regarding the use of non-public personal information and the requirements of Tib Finance’s Privacy Policy as amended from time to time. Merchant agrees to the data protection provisions set forth in the exhibits to these Merchant Terms and Conditions. Further, Merchant (i) will not use any End-User Customer Information for any other purpose other than those contemplated hereunder, (ii) has and will maintain reasonable and appropriate measures to protect

the security and confidentiality of such End-User Customer Information, and (iii) will not, directly or through an affiliate, disclose or permit the disclosure of any End-User Customer Information to any other person that is not an affiliate or service provider, or an employee or agent of any such party with a demonstrable need to know such EndUser Customer Information in order to fulfill the obligations hereunder, and (iv) will not use any End-User Customer Information in breach of the European Union’s data privacy requirements relating to EU-based customers.

Merchant shall take all available steps and precautions to prevent fraud, theft and/or misappropriation of End-User Customer Information.

7.1.2Subject to each Merchant’s obligations of confidentiality or a duty to restrict dissemination of proprietary information arising from third party relationships or as otherwise imposed by law, Merchant will promptly notify Tib Finance, in accordance with Section 14.3 of this Agreement,  as soon as commercially reasonable upon learning of any suspected or actual security breach, unauthorized disclosure, compromise of privacy involving End-User Customers’ Information or the actual loss or theft of any such personal information (“Security Incident”). In the event of a Security Incident, Tib Finance may in its sole and absolute discretion (i) withhold payments to the Merchant pending further investigation by Tib Finance,  (ii) suspend its licenses and services under this Agreement, (iii) terminate the Agreement, and/or (iv) set up any appropriate Reserves as it deems necessary and utilizing any such Reserves to satisfy any chargebacks, chargeback fees, refunds, fines, assessments or penalties, (v) initiate any appropriate debit of Merchant’s Bank Accounts. Merchant will be solely liable for any such Security Incident and Tib Finance shall not be required to pay any sums to Merchant in respect to such incidents. Should Tib Finance initiate any of the steps listed (i) – (v) in the previous sentence, Tib Finance shall inform Merchant of such action and the reasons for such action in accordance with section 14.3 of this Agreement. Tib Finance will endeavour to inform Merchant in advance of such steps being taken. When this is not possible, Tib Finance will inform Merchant, at the latest, immediately after such steps are taken. In respect of steps (i), (ii), (iv) and (v), Tib Finance will cease such action as soon as the reasons for the initiation of such action cease and will inform Merchant of same.

7.2Fraud and Criminal Activity. Merchant will promptly notify Tib Finance, in accordance with Section 14.3 of this Agreement, as soon as commercially reasonable upon learning of any suspected or actual fraudulent or criminal activity in respect of the Tib Finance Services. In the event that Tib Finance reasonably believes that Merchant and/or its customers is attempting to engage, or is engaging in manipulative, fraudulent, illegal or criminal activities using the Services, Tib Finance may in its sole and absolute discretion (i) withhold payments to the Merchant, pending further investigation by Tib Finance, (ii) suspend its licenses and services under this Agreement, (iii) terminate the Agreement, and/or (iv) set up any appropriate Holdbacks or Rolling Reserves as it deems necessary and utilizing any such Holdbacks or Rolling reserves to satisfy any chargebacks, chargeback fees, refunds, fines, assessments or penalties, (v) initiate any appropriate debit of Merchant’s Bank Accounts. Merchant will be solely liable for any such fraudulent, illegal or criminal activity and Tib Finance shall not be required to pay any sums to Merchant in respect to such activities. Tib Finance reserves the right to make investigation as it determines and to inform the relevant authorities and Acquirers. 8Representations and Warranties

8.1Mutual. Each party hereby represents, warrants and covenants to the other party for the duration of the Term that:

                      8.1.1Its obligations under this Agreement are valid, binding and enforceable in accordance

with the terms and conditions set forth herein;

8.1.2It has the full legal right and authority to enter into and implement this Agreement in all respects, and the execution and performance of this Agreement does not violate, or conflict with any other contract or agreement to which it is a party, or by which it is bound, and that the person accepting the terms of this Agreement has complete authority to bind it to this Agreement; and

8.1.3It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with corporate power and authority adequate for executing, delivering, and performing its obligations under this Agreement.

8.2By Tib Finance. (a) Tib Finance hereby represents, warrants and covenants to Merchant for the duration of the Term that it has the right to perform the Services stated herein. (b) Tib Finance represents and warrants that it has the appropriate license, right, title or interest to all Tib Finance Trademarks and other Intellectual Property provided by Tib Finance or on Tib Finance’s behalf. (c) Tib Finance hereby represents, warrants and covenants to Merchant for the duration of the Term that to the best of Tib Finance’s knowledge, the Services do not and will not infringe upon any intellectual property rights of any third party.

           8.3 By Merchant.

8.3.1Merchant represents and warrants that it has the appropriate license, right, title or interest to all Merchant Trademarks and other Intellectual Property provided by Merchant or on Merchant’s behalf.

8.3.2Merchant hereby represents, warrants and covenants to Tib Finance for the duration of the Term that: (i) to the best of Merchant’s knowledge, the Products do not and will not infringe upon any intellectual property rights of any third party and that it has the right to sell the Products through the Services; (ii) any digital files uploaded onto or used via the Services have been tested and are free of any virus, Trojan, malware, spyware, keylogger, adware or any other malicious script or programming function that may cause harm, slowdown, interruption or malfunction to any computer system; (iii) the Products are not illegal and do not contravene the Tib Financelistofprohibiteditems,as may be amended from time to time and do not violate any export/import control laws over national borders; and (iv) it has taken commercially reasonable steps to ensure the security of End-User Customer Information controlled by or provided to Merchant (“Merchant-Controlled Personal Information”) and ensure its protection from intrusion (electronic or physical) or disclosure of such information to unauthorized third parties and that Merchant shall remain in compliance with all applicable laws, and regulations related to the security and storage of such Merchant-Controlled Personal Information.

8.3.3Merchant warrants and agrees that it shall at its own cost complete and maintain all necessary tax registration requirements in any territory for which it is required to charge, collect, pay over or remit any U.S. sales tax, Canadian taxes, European Union VAT and other international sales or VAT or equivalent taxes, and furthermore that it shall retain for the period required by applicable tax authorities, proof of remittance to each respective tax authority of any tax sum if collected by Tib Finance on Merchant’s behalf and thereafter passed to Merchant as the responsible party for payment to a tax authority.

8.3.4Merchant warrants that the contact and identifying particulars relating to name, location, address, email, phone, bank accounts, ownership, stakeholders, corporate officers, business names, Products, billing descriptors and customer contact information are true and correct, and that Merchant may be contacted by Customers at the address(es) given for such purpose. Merchant shall keep such information updated and correct during the

course of this Agreement. Merchant shall furthermore pass transactions in its own name when using Merchant ID and only in respect of authorized products.

8.3.5Merchant warrants it (or Merchant users and third parties authorized by Merchant and Tib Finance) shall (i) not engage in any illegal practices; (ii) not use the Tib Finance Services to sell Products in breach of the Intellectual Property rights of any third party;

(iii)not engage in any behavior in breach of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CANSPAM Act”) or any other laws and regulations designed to prevent illegal marketing, Internet fraud, thefts or communications of an improper or illegal nature, and

(iv)not publish any misleading information relating to the Products provided to be transacted through the Tib Finance Services. Merchant furthermore understands that such breach of the above or otherwise unlawful activities may cause serious harm to and adversely affect the reputation and business of Tib Finance, and that Merchant shall be liable in respect of any loss and damage arising from such activities.

8.3.6 Merchant warrants that it shall be fully PCI compliant if it stores any credit card data and agrees not to capture and/or hold any payment information unless expressly permitted under PCI standards.

8.4Disclaimers.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT:

THE SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” AND “WITH ALL

FAULTS” BASIS. TO THE EXTENT PERMITTED BY LAW, TIB FINANCE DISCLAIMS

ALL IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT.

                    TIB FINANCE MAKES            NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR

GUARANTEES AS TO THE USEFULNESS, QUALITY, SUITABILITY, OR COMPLETENESS OF THE SERVICES OR THAT THEY WILL BE ERROR-FREE, UNINTERRUPTED OR FREE FROM DEFECT. 9Indemnification

9.1By Tib Finance. Tib Finance will defend, indemnify and hold Merchant and its affiliates, directors, officers, employees, and agents harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings made or brought by a third party (“Claim(s)”) against Merchant alleging that the use of the Services as contemplated hereunder infringes the intellectual property rights of a third party; provided that for the above Merchant (a) promptly gives written notice of the Claim to Tib Finance; (b) gives Tib Finance sole control of the defense and settlement of the Claim; and (c) provides to Tib Finance, at Tib Finance’s cost, all reasonable assistance requested by Tib Finance. The foregoing indemnity will not apply to any third party claim that arises solely from Merchant’s use, operation or combination of the Services with non Tib Finance programs, data or equipment, modifications or alterations not made or authorized by Tib Finance, or Merchant’s breach of this Agreement or willful misconduct. In the event that Tib Finance determines that the Services or any component of the Services might infringe the intellectual property rights of a third party, Tib Finance will have the right, at Tib Finance’s option and expense, to: (i) procure for Merchant, at no cost to Merchant, the rights necessary to continue exercising such rights; or (ii) replace or modify the infringing portion of the Services so that it no longer infringes or misappropriates the third party’s rights, provided the replacement has substantially equivalent functionality, or (iii) terminate this Agreement. The provisions of this Section 9.1 state the sole, exclusive and entire liability of Tib Finance, and the sole, exclusive and entire remedy of Merchant, with respect to any claim of patent, copyright, trade secret, trademark or other Intellectual Property infringement by the Services.

9.2By Merchant. Merchant will defend, indemnify and hold Tib Finance and its affiliates, directors, officers, employees, and agents harmless against any Claims against Tib Finance arising out of (i) Merchant’s breach of this Agreement, (ii) Product warranties, description, fitness, merchantability, and safety (iii) Claims related to End-User Customer use of the Products; and

(iv) any Claim involving misuse or loss of End-User Customer Information by Merchant including loss due to security breach including any breach of PCI-DSS requirements, and/or any Claim relating to breaches of privacy legislation; and (v) any Claim relating to any taxes chargeable or payable on the transaction; and (vi) in respect of any Claim, penalty, fine or loss relating to any improper, unauthorized, illegal, and/or fraudulent transactions; and (vii) act of negligence, any third party claim in respect of Intellectual Property, or title to the Products, actions in breach of Card Association rules, provided that for the above, Tib Finance (a) promptly gives written notice of the Claim to Merchant; (b) gives Merchant sole control of the defense and settlement of the Claim; and (c) provides to Merchant, at Merchant’s cost, all reasonable assistance requested by Merchant. Such indemnity shall include all reasonable legal fees and costs of investigation and Tib Finance shall be entitled to debit such fees and costs from the Merchant's account.

10Limitation of Liability

10.1LIMITATION OF LIABILITY. (i) IN NO EVENT WILL TIB FINANCE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING EXHIBIT 10 AND ANY STANDARD CONTRACTUAL CLAUSES ENTERED INTO PURSUANT TO IT), WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER

THEORY OF LIABILITY, EXCEED FEES ACTUALLY PAID TO TIB FINANCE BY THE MERCHANT UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE INCIDENT(S) GIVING RISE TO LIABILITY.

(ii)TIB FINANCE DOES NOT ASSUME ANY LIABILITY FOR MERCHANT’S FAILURE TO

PERFORM IN ACCORDANCE WITH THIS AGREEMENT OR ANY RESULTS CAUSED

BY MERCHANT’S ACTS, OMISSIONS OR NEGLIGENCE, OR A SUBCONTRACTOR OR

AN AGENT OF MERCHANT OR AN EMPLOYEE OF MERCHANT OR ANY OF

MERCHANT’S AGENTS OR SUBCONTRACTORS, NOR SHALL TIB FINANCE HAVE ANY

LIABILITY FOR CLAIMS OF THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO,

CLAIMS OF THIRD PARTIES ARISING OUT OF OR RESULTING FROM, OR IN

                      CONNECTION         WITH,         MERCHANT’S         PRODUCTS,          DESCRIPTIONS,

                       REPRESENTATIONS,        MESSAGES,       PROGRAMS,       CALLER         CONTRACTS,

PROMOTIONS, ADVERTISING, INFRINGEMENT, OR ANY CLAIM FOR LIBEL OR SLANDER OR FOR MERCHANT’S VIOLATION OF COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHTS. 

(iii)UNLESS THERE IS A SPECIFIC WRITTEN AGREEMENT OTHERWISE,

MERCHANT ACKNOWLEDGES AND AGREES THAT THE RELATIONSHIP IN

CONNECTION WITH THIS AGREEMENT IS WITH TIB FINANCE AND NOT ACQUIRER,

CARD ASSOCIATION OR BANK. ACCORDINGLY, MERCHANT SHALL SEEK NO

RECOURSE AGAINST ACQUIRER, CARD ASSOCIATION OR BANK, AND NEITHER

ACQUIRER, CARD ASSOCIATION NOR BANK SHALL HAVE ANY LIABILITY

WHATSOEVER TO MERCHANT, FOR ANY DIRECT OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, SERVICES PERFORMED HEREUNDER.

(iv)MERCHANT WAIVES ANY CLAIM AGAINST TIB FINANCE, OTHER THAN FOR

TIB FINANCE’S BREACH OF THE TERMS OF THIS AGREEMENT, WITH REGARD TO ACCEPTANCE OR DENIAL OF ANY CARD PAYMENT BY AN ACQUIRING BANK OR USE OF ANY OTHER PAYMENT TYPE.

10.2EXCLUSION OF DAMAGES. IN NO EVENT WILL TIB FINANCE NOR ACQUIRER, CARD ASSOCIATION OR BANK HAVE ANY LIABILITY TO THE OTHER PARTIES OR ANY

OTHER PARTY FOR ANY LOST PROFITS, LOSS OF BUSINESS, GOODWILL OR

                       REVENUE, OR       FOR ANY INDIRECT, SPECIAL,      INCIDENTAL,       PUNITIVE, OR

CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT,

TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE

PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TIB FINANCE

SHALL NOT HAVE ANY LIABLITY TO MERCHANT ARISING FROM DELAYS OR PROBLEMS CAUSED BY TELECOMMUNICATIONS CARRIERS OR THE BANKING SYSTEM.

11Confidentiality

11.1Definition of Confidential Information. As used herein, “Confidential Information” means all of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.  End-User Customer Information will be Confidential Information under this Agreement.

11.2Confidentiality. The Receiving Party may not disclose or use any Confidential Information of the Disclosing Party for any purpose other than to exercise the rights granted to it or perform its obligations under the Agreement.

11.3Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it may do so; provided that it provides the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

11.4Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any

Confidential Information of the Disclosing Party in breach of this Agreement, the Disclosing Party will have the right, in addition to any other remedies available to it, to obtain injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

11.5Return of Confidential Information. Upon termination or expiration of this Agreement, the Receiving Party shall return all copies of the Disclosing Party’s confidential information (with the exception of 1 archival copy for the purpose of compliance with these obligations) or remove same from all media and destroy same.

11.6Survival of Confidentiality. The obligations under this section shall continue for three (3) years from the termination/expiration of this Agreement.

11.7Permitted Releases. Notwithstanding the foregoing, Tib Finance reserves the right to release information of Merchant to law enforcement and Card Associations upon request or if Tib Finance reasonably believes Merchant or any representative thereof was involved in violations of any law. Tib Finance also reserves the right to release information to legal and other professional advisers acting under a duty of confidentiality, and to access and use such information to undertake investigations in cases of suspected or actual fraud, criminal behavior, misrepresentation, security breach, and/or breach of Card Association Rules. Further, Tib Finance may use aggregated non-personally identifiable information for marketing statistics and similar uses.

12Term

12.1Term. (i) Unless otherwise terminated pursuant to this section, this Agreement shall continue until terminated by one party serving upon the other advance written notice in accordance with this Agreement of 60 days’ notice of such party’s intention to terminate this Agreement. Such notice shall be given in accordance with the notification provisions Section 14.2. If Merchant has contracted with Tib Finance Payment Services Limited or Tib Finance Payment Services Ireland Limited, Merchant may serve advance written notice of 30 days in respect of termination. 

(ii) In the event Merchant opts for month to month term and pricing as set forth in the Accounts Receivable exhibit (Exhibit 13) and Schedule 1, then the notice and termination terms of this Section 12.1 as to the services set forth in Exhibit 13 are applicable. However, in the event that Merchant opts for annual pricing as set forth in Exhibit 13 and Schedule 1 or such pricing as may be in any stand-alone service order for Tib Finance accounts receivable, the notice and termination terms of this Section 12.1 are not applicable as to the services set forth in Exhibit 13 and the term set forth in section 5.1 of Exhibit 13 regarding accounts receivables automation services and any corresponding fees shall remain in effect and be renewed as set forth in section 5.1 notwithstanding any termination of payment processing or other services under this Section 12.1, unless otherwise agreed in writing by the parties. 

12.2Termination.

12.2.1Either party may terminate this Agreement on written notice to the other party if (i) the other party materially breaches this Agreement and (ii) does not cure that breach within fourteen (14) days after receiving notice of such breach with termination effective as of the expiration of said fourteen days.

12.2.2Tib Finance may terminate this Agreement immediately in respect of one or more of the following:

(i)if required by any relevant Acquirer, bank, financial institution connected with

Tib Finance’s transaction process, to terminate its services to Merchant or suspend the Merchant’s account, or if Tib Finance has reasonable cause to believe any such party may make such request; or

(ii)in the event that Tib Finance has a reasonable suspicion that Merchant is in breach of Section 4, 7, 8, or any Card Association Rules, PCI standards, or requirements of any relevant Acquirer including as applicable the provisions of any hereto or any other Acquirer or third party agreement appended as an exhibit hereto if applicable to Merchant, or has a reasonable cause to suspect that Merchant has lost, misused or abused any End Customer Information or Confidential Information, or has engaged in any instance of spam or illegal marketing either directly or through a third party; has been the subject of a data security breach; or

(iii)Merchant has in Tib Finance’s or any Acquirer’s sole discretion, reached an excessive or unacceptable level of refunds, Chargebacks and/or reversals, or that Merchant’s account status, account balance or pattern of business represents an unjustifiable risk to Tib Finance and/or any Acquirer; or

(iv)Merchant has in Tib Finance’s or any Acquirer’s sole discretion or reasonable belief committed any misrepresentation including but not limited to its Products, business, ownership, directors, officers, financial standing, location, bank accounts, financial reports, credit record, credit report, and/or credit status; or

(v)Merchant has in Tib Finance’s or any Acquirer’s sole discretion or reasonable belief submitted or attempted to submit transactions in breach of this Agreement, and/or that are prohibited, suspicious, wrongful, fraudulent, unlawful unauthorized, or may be related to money laundering, fraud, scam, or other illegal operations; or

(vi)Merchant fails to promptly provide information requested by Tib Finance or any Acquirer concerning the investigation of any Chargeback, refund, fraudulent or suspicious acts or transaction, or fails to permit upon request the proper audit, inspection or submission of relevant business records and financial data or the running of a security audit.

Furthermore in case of any such circumstance, Tib Finance may immediately suspend further transaction services with respect to the Merchant.

12.2.3Tib Finance may terminate this Agreement on fourteen (14) days written notice if Tib Finance no longer supports a product category and/or MCC that is required by Merchant.

12.2.4Either party may terminate this Agreement immediately upon written notice to the other party if: (i) a party becomes insolvent or stops paying its obligations in the ordinary course of business; (ii) a party makes an assignment for the benefit of creditors; (iii) a party files or becomes subject to a filing for reorganization, receivership or bankruptcy under the insolvency or bankruptcy laws of any country having jurisdiction of a party (as it is now or may be hereafter constituted, including a declaration of insolvency); or

(iv) a party is dissolved, liquidated, or wound-up or otherwise ceases or compelled to cease business.

12.2.5This Agreement may be terminated immediately in the event that (i) Tib Finance is deregistered by a Credit Card company or ceases to be an accepted customer to at least one Credit Card company or there ceases to be at least one Acquirer servicing Tib Finance that is recognized by one or more Credit Card companies; or (ii) due to changes in any relevant  Acquirer’s  operating standards,  data  requirements, regulations,  integration

methods, technical or security requirements it is no longer commercially viable for Tib Finance to provide Services to Merchant.

12.2.6Tib Finance may terminate this Agreement immediately and without prior notice or penalty if (i) in its sole discretion such termination is necessary for Tib Finance to comply with its obligations under any applicable law, rule or regulation, or order of a court of law, including but not limited to money laundering obligations, Card Association Rules, Office of Foreign Assets Control regulations, if in the discretion of one or more Card companies or Acquirer, Merchant has acted in a fraudulent or otherwise wrongful manner; or (ii) in its sole discretion the level of business risk or value posed by Merchant is no longer acceptable.

12.2.7Except where prohibited by law, regulation or Card Association Rules, Tib Finance shall assist Merchant at Merchant’s written request in the transfer of Merchant’s data to an alternative service provider subject to Merchant making payment of Tib Finance’s fees, costs and expenses, as determined by Tib Finance in good faith under the circumstances,  in relation thereto as charged at Tib Finance’s standard custom work rates then in force and that transfer is  to an appropriately PCI-certified provider. 

12.2.8Any material lessening or diminishing of transaction amounts or volume may be deemed by Tib Finance, in its sole reasonable discretion, to be a constructive termination of this Merchant Agreement by Merchant.

12.3Effect of Termination. Upon termination of this Agreement for any reason, (i) all licenses shall terminate, (ii) Merchant will cease using the Services (including removal of any links to Tib Finance’s websites), (iii) each party shall cease to use the other party’s Intellectual Property,

(iv) Tib Finance will deduct all fees and other sums due and owing at the time of termination and remit the outstanding Merchant Balance, subject to the further provisions of this section, after sufficient time  to allow for clearance of any Refunds and Chargebacks and provided that Merchant has had two (2) consecutive months of no Refunds or Chargebacks; Tib Finance may in its sole discretion holdback whatever sums it deems necessary as a termination reserve, for the greater of 12 months or so as to be coterminous with the relevant Acquirer’s reserve requirements for Tib Finance, from the date of termination to ensure that there are sufficient sums in the Merchant’s account to meet all financial and legal obligations relating thereto; and (v) Merchant will continue to be financially responsible for any additional Refunds and Chargebacks up to and after such applicable period in (iv); and (vi) where appropriate or required Tib Finance may report a Merchant and its offices to the Card Association terminated merchant files list.

In all circumstances that this Agreement is terminated by Tib Finance as provided by this Agreement or Merchant is suspended thereunder, Tib Finance shall not be liable to Merchant in respect of any claim relating to loss of business or effect upon Merchant’s credit rating. 

12.4Upon termination or expiration of this Agreement, Tib Finance may provide such transition services

as may be mutually agreed by the parties. The fees for such services shall be as mutually agreed upon by the parties.  13Taxes

13.1Taxes. All applicable taxes, levies, imposts or the like, including but not limited to any applicable sales taxes, value added taxes, withholding taxes and any other taxes levied on sales transactions involving End-User Customers and/or the flow of settlement funds to Merchant are the ultimate responsibility and liability of Merchant, and shall if necessary be calculated by Merchant when setting its pricing and payable by Merchant directly to the appropriate authorities. Tib Finance shall be entitled to set off in full or in part any amounts paid or payable by it to such authorities or from any sums withheld on behalf of such authorities with respect to the Merchant.

Tib Finance is not obligated to determine whether taxes apply and unless otherwise provided herein, is not responsible to collect, report or remit tax to any appropriate authority. Merchant shall be responsible for any VAT or similar tax payable in respect of Tib Finance fees charged to Merchant.

13.2Withholdings by End-User Customer or Merchant. In the event that pursuant to any law or regulation, tax is required to be withheld, or stands to be deductible at source from any payment made or payable to Tib Finance by Merchant or from its End-User Customer, Merchant or End- User Customer may withhold or permit the deduction of said tax at the rate set forth in the certification issued by any such applicable tax authority at the rate determined by said law or regulation. In the event that Merchant or End-User Customer is required to withhold or allow the deduction of any such taxes, the amount paid to Tib Finance shall be increased to the extent necessary to yield to Tib Finance (after withholding or deduction of such taxes) a net amount equal to such sum Tib Finance would have received had no such withholding or deduction been made.

13.3 Value Added Tax. From time to time in accordance with appropriate tax laws, Tib Finance may elect to collect European Union (“EU”)/UK VAT when electronic products are sold End-

User Customers located in the EU/UK on behalf of the Merchant. End-User Customers that are businesses will be able to waive said VAT charges by providing a valid VAT ID. These taxes will be submitted by Tib Finance to the appropriate EU/UK authorities in the name of Tib Finance or the Merchant as may be appropriate. It is Merchant’s responsibility to properly mark Products electronically delivered only or not within the Tib Finance Services. In the event that Merchant incorrectly marks Products, then Merchant shall be directly liable for payment of any tax due, including legal fees and interest, and shall be liable to fully indemnify Tib Finance without limit for any losses, fines, penalties, charges or legal fees arising. 14Miscellaneous

14.1No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Further, Merchant is not a third party beneficiary to any agreement between Tib Finance and an Acquirer.

14.2Notices. All notices under this Agreement including but not limited to relating to the Term, its extension or termination or any alleged breach of this Agreement, indemnity claim or notification relating to any taxation matter are required to be in writing and will be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing by first class U.S. mail to an address within the continental United States; (iii) the business day after sending by confirmed facsimile;  (iv) the business day after sending by email or (v) pursuant to Section

14.2.1. Notices to Tib Finance are to be addressed to: 800 South Street, Suite 640, Waltham, MA 02453. Notices to Merchant will be addressed to the address first stated in this Agreement or such subsequent address as Merchant delivers to Tib Finance in writing.

14.2.1Merchant agrees that Tib Finance may communicate with Merchant via electronic notices, notices on its website, www.Tib Finance.com,and/or the current administrative e-mail address that Tib Finance has on file for the Merchant. Merchant affirmatively consents to receive notices electronically from Tib Finance and agrees that Tib Finance may provide all communications and transactions related to the Services and Merchant’s account, including without limitation any ancillary agreements related to the Services, amendments or changes to such agreements, Card Association Rules, or any disclosures, notices, transaction information, statements, policies (including without limitation notices about the Tib Finance Privacy Policy), responses to claims, and other customer communications that Tib Finance may be required to provide to Merchant by law (collectively, “Communications”) in electronic format. All such Communications will be deemed to be in "writing" and received by Merchant when sent. Merchant shall be responsible for printing, storing, and maintaining its own records of such Communications. Where appropriate Merchant shall send its responses to such notices to Tib Finance at the designated e-mail address(es) set out in the Services or through the applicable submission forms if provided. Tib Finance reserves the right to discontinue or modify how Communications are provided and shall give Merchant prior notice of any change. Merchant’s continued consent is required to use the Services. 

14.2.2All information relating to the Services described in the Master Agreement and these Merchant Terms and Conditions and all customer service support and other communication during the contractual relationship will be provided in the English language only. Merchant can request a copy of the Master Agreement and these Merchant Terms and Conditions from Tib Finance at any time during the term of this Agreement. 

14.3Publicity. Merchant consents to Tib Finance’s use of Merchant’s name and logo on Tib Finance’s website, list of customers, interviews and to press releases concerning Merchant’s use of Tib Finance Services as well as use of Merchant’s name for other marketing of Tib Finance’s Services.

14.4Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. A waiver shall only be effective in

writing executed by the party granting the waiver. Other than as expressly stated herein, any remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

14.5Force Majeure. A party shall be under no liability to the other party for, and is excused from, any failure to deliver or perform or for delay in delivery or performance due to causes beyond its control, including, but not limited to, governmental actions, fire, work stoppages, shortages, war, terrorism, civil disturbances, transportation problems, interruptions of power or communications and natural disasters.

Furthermore, Tib Finance shall not be liable in respect of Internet service provider or hosting facility failures or delays involving third party hardware or software systems, denial of service attacks, malware intrusion, hacking attacks, acts of third parties outside of Tib Finance’s control, or significant changes in the ability of Tib Finance to offer the Services in terms of the scope and/or price set out herein as a result of changes in law, or in policy of Card Associations and/or Acquirers, and/or governmental authorities.

14.6Severability. If any provision of this Agreement 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 this Agreement will remain in effect.

14.7Amendment of Agreement. Subject to Section 4.13, Exhibit 1 and Schedule 1‘Pricing and Fees’ of the Master Agreement, any amendment of the terms of this Agreement by Tib Finance may be upon sixty (60) days prior written notice after which Merchant will be deemed to have accepted such amendment(s). If not in agreement, Merchant may terminate this Agreement in writing without any extra cost, at any time before the effective date of the amendment(s). Tib Finance may if it sees fit issue a new written version of any amended Agreement and/or any accompanying Terms and Conditions, Schedules and Exhibits to Merchant through the Internet at https://home.Tib Finance.com/ecommerce/contracts/and/or email.  

14.8Arbitration. Except as set forth below, all disputes between the parties arising from this Agreement, including disputes as to the validity or existence of this Agreement shall be referred to and finally determined by arbitration of one arbitrator, conducted in the English language in Boston, Massachusetts, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Notwithstanding the aforesaid, Tib Finance shall be entitled at its sole discretion to take any action permitted in Section 12 at any time. Class action law suits and class-wide arbitration proceedings and any other proceeding where someone acts as a representative are not allowed. The arbitrator shall apply the law of the Commonwealth of Massachusetts, USA with respect to Tib Finance Inc., and the laws of England and Wales with respect to Tib Finance Payment Services Limited and the laws of Ireland with respect to Tib Finance Payment Services Ireland Limited, or in the case of any other Tib Finance party set out herein, the laws of the jurisdiction in which that Tib Finance Party is incorporated. The proceedings shall be secret and the award shall be final and binding on the parties, and each party consents to the award being enforced by order of any court of competent jurisdiction. The parties agree to waive any right to jury proceedings. Nothing the forgoing shall be construed as preventing Tib Finance from bringing suit in a court of competent jurisdiction should it so see fit to do so, or should Merchant commit a fraudulent or other intentional act in violation of this Agreement or as preventing Tib Finance from seeking equitable relief from a court of competent jurisdiction.    

14.9Governing Law. In so far as section 14.8 shall not be applicable with respect to Tib Finance Inc., this Agreement and any matter arising out of or related to it is to be governed, interpreted, construed and enforced solely and exclusively in accordance with the law of the Commonwealth of Massachusetts without regard to its conflicts of laws rules. Tib Finance Inc., and Merchant hereby submit to the exclusive jurisdiction of state and federal courts located in Suffolk County, Commonwealth of Massachusetts, USA. With respect to Tib Finance Payment Services Limited, this Agreement and any matter arising out of or related to it is to be governed, interpreted, construed and enforced solely and exclusively in accordance with the laws of England and Wales without regard to its conflict of laws rules. Tib Finance Payment Services Limited, and Merchant hereby submit to the exclusive jurisdiction of the courts located in England. With respect to Tib Finance Enterprise Canada Inc, this Agreement and any matter arising out of or related to it is to be governed, interpreted, construed and enforced solely and exclusively in accordance with the laws of British Columbia without regard to its conflict of laws rules. With respect to Tib Finance Payment Services Ireland Limited, this Agreement and any matter arising out of or related to it is to be governed, interpreted, construed and enforced solely and exclusively in accordance with the laws of Ireland. Tib Finance Payment Services Ireland Limited and the Merchant hereby submit to the exclusive jurisdiction of the courts located in Ireland.  Tib Finance Enterprise Canada Inc, and Merchant hereby submit to the exclusive jurisdiction of the courts located in Vancouver, British Columbia, Canada. With respect to Tib Finance Australia Pty Limited this Agreement and any matter arising out of or related to it is to be governed, interpreted, construed and enforced solely and exclusively in accordance with the laws of New South Wales, without regard to its conflict of laws rules. Tib Finance Australia Pty Limited and Merchant hereby submit to the exclusive jurisdiction of the courts located in Sydney, New South Wales, Australia. With respect to Tib Finance Payment Services Israel Limited this Agreement and any matter arising out of or related to it is to be governed, interpreted, construed and enforced solely and exclusively in accordance with the laws of the State of Israel, without regard to its conflict of laws rules. Tib Finance Payment Services Israel Limited and Merchant hereby submit to the exclusive jurisdiction of the courts located in Tel Aviv, Israel. With respect to any other Tib Finance entity that may expressly be a party to the Agreement, this Agreement and any matter arising out of or related to it is to be governed, interpreted, construed and enforced solely and exclusively in accordance with the laws of the jurisdiction of that Tib Finance entity without regard to its conflict of laws rules. In so far as section 14.9 shall not be applicable, the parties hereby submit to the exclusive jurisdiction of the courts located in the jurisdiction of that Tib Finance entity.

Nothwithsanding the above, if more than one Tib Finance entity is involved then Tib Finance shall have the right to elect a single choice of effective law and jurisdiction that shall be applied to avoid duplicity of proceedings in multiple jurisdictions. 

MERCHANT WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION TO

ENFORCE OR DEFEND ANY RIGHT UNDER THIS AGREEMENT OR ANY

AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR TO BE

DELIVERED IN CONNECTION WITH THIS AGREEMENT OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY ACTION WILL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.

14.10Survival. Any terms of this Agreement that expressly or by their nature extend beyond the termination of Services shall remain in effect until fulfilled or according to the applicable provision and apply to both parties’ successors and assignees. The following provisions will survive the expiration or termination of this Agreement: (Definitions), (Services), (Ownership), (Customer Data), (Disclaimers), (Indemnification), (Limitation of Liability), (Confidentiality), (Effect of Termination), and (Miscellaneous).

14.11Signature and Counterparts. This Agreement may be executed by facsimile and in counterparts, which taken together will form one legal instrument, or by electronic signature or acceptance which the parties agree shall duly bind them.

14.12Non-Solicitation. Merchant agrees that during the term of this Agreement and for six months thereafter, it shall not directly or indirectly solicit or endeavor to employ or entice away, any person who has been employed by Tib Finance during such period, whether for itself or on behalf of any other party.

EXHIBIT 1

ACQUIRER AGREEMENT(S) AND ADDITIONAL PROVISIONS

The provision of the Tib Finance Services is conditional on the following being executed and in full force and effect if applicable:

Acquirer Agreement(s) for Sub-Merchants

Merchant Application

PCI Self Assessment Questionnaire

EXHIBIT 2

 A MER I C AN EX PR ESS (“A MEX”)

Merchant agrees to comply with the American Express Merchant Operating Guide requirements, which are incorporated into this Agreement by reference as if they were fully set forth in the Agreement as applicable for the geographic region(s) where Merchant is located, including the United States, Canada and Australia, and also the American Express Data Security Operating Policy. 

The American Express Merchant Operating Guide for Merchants in the United States may be viewed at:

www.americanexpress.com/merchantopguide.

The American Express Merchant Operating Guide – Canada may be viewed at: https://icm.aexp-static.com/content/dam/gms/en_ca/optblue/canada-mog.pdfThe American Express Data Security Operating Policy may be viewed at:

www.americanexpress.com/datasecurity.

Additionally, Merchant shall accept Cards in accordance with the terms of the Tib Finance Merchant Agreement and agrees to the following:

(1)Merchant acknowledges that Tib Finance may provide gateway services to Merchant as applicable with respect to American Express (“AMEX”). Merchant understands and acknowledges that in those instances Tib Finance acts only as a gateway for fees as agreed between Merchant and Tib Finance and that AMEX is responsible to settle transaction funds to Merchant. 

(2)In the event that Merchant’s Estimated Annual Charge Volume becomes $1,000,000 USD or greater, Merchant will become a direct Card-accepting Merchant under the standard AMEX acceptance program and  will be bound by AMEX Card acceptance agreement; however Tib Finance shall continue to be the processor under the Tib Finance Merchant Agreement unless Merchant is otherwise notified;

(3)Merchant warrants that it does not hold third party beneficiary rights to any agreements between Tib Finance and AMEX and at no time will attempt to enforce any such agreements against AMEX; and

(4)Merchant confers on AMEX third party beneficiary rights, but not obligations, to the Merchant’s agreement with Tib Finance that will fully provide AMEX with the ability to enforce the terms of the Merchant  Agreement against the Merchant and protect the AMEX brand. (5)AMEX may use the information supplied in the Merchant application to screen and/or monitor the Merchant in connection with Card marketing and administrative purposes.

(6)Merchant specifically authorizes Tib Finance to submit Transactions to and receive settlement from AMEX on behalf of Merchant. Merchant further gives Tib Finance consent to disclose transaction data, merchant data, personal information and other data about Merchant to AMEX and its affiliates, agents, subcontractors, and employees; that AMEX can use such information to perform its responsibilities in connection with the program, to perform under the relevant agreements, operate, promote the AMEX network, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communication purposes. 

(7)Merchant agrees to ensure data quality and that the transaction data and customer information is processed promptly, accurately and completely, and complies with the AMEX technical specifications.

(8)Merchants may opt-out of marketing by AMEX by sending a written request to Tib Finance. Opting-out of marketing messages will not preclude Merchant from receiving important transactional or relationship communications from AMEX.

(9)Merchant may opt out of accepting AMEX cards at any time without directly or indirectly affecting its right to accept other payment products.

(10)Merchant shall not bill or collect for any purchase or payment on the AMEX card unless chargeback has been exercised, the Merchant has fully paid for such charge, and Merchant has the right to so bill or collect.

(11)Merchant shall report all instances of a data incident immediately to Tib Finance after discovery. (12)Except as otherwise provided Merchant has no right to use any AMEX intellectual property, licensed marks including logos, without the express written consent of AMEX. Merchant shall upon termination by AMEX or of this Agreement remove AMEX licensed marks from Merchant’s website and wherever else they are displayed by Merchant immediately upon termination.

(13)Merchant shall not process or receive payments on behalf of, or (unless required by law) redirecting payments to any other party. 

(14)Merchant shall communicate its acceptance of AMEX when communicating the payment methods it accepts and display AMEX marks according to AMEX guidelines.

(15)Merchant’s website shall not contain libelous, defamatory, obscene, pornographic or profane material or any information or instruction that may cause harm to any individuals or to the American Express brand. 

(16)Merchant must not criticize or mischaracterize AMEX card, services or programs or engage in activities that harms the AMEX business or brand.

(17)Merchant shall not assign to any third party any payments due to it under its respective  Merchant Agreement, and all indebtedness arising from charges will be for bona fide sales of goods and services (or both) at its establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the Merchant may sell and assign future transaction receivables to Tib Finance, its affiliated entities and/ or any other cash advance funding source that partners with Tib Finance or its affiliated entities, without consent of American Express. (18)Merchant agrees to abide by the limitation of liability set forth in the American Express Merchant Operating Guide applicable to the Merchant’s region. 

(19)Merchant must maintain customer service information that is readily available for review by AMEX cardmembers transacting with Merchant. The customer service information should include clear instructions on how to contact Merchant if the AMEX cardmember has any question about a transaction. At a minimum, the instructions must provide an active customer service e-mail address and a customer service telephone number for the Merchant and a chat or an email and web page address on Merchant website where Amex cardmembers can access transaction information. 

(20)Merchant’s refund polices must be disclosed to AMEX Cardmembers at the time of purchase and in compliance with applicable law. Refund policies for purchases on AMEX cards must at be at least as favorable as for other payment methods. 

The following additional provisions shall apply to Merchant’s use of AMEX Australia: 

(21)When promoting payment methods Merchant shall give AMEX equal representation and shall display permitted AMEX licensed marks, signage, decals and logs or other identification. Such licensed marks shall be removed on termination of the Tib Finance Merchant Agreement.  

(22)Merchant shall comply with all applicable laws, rules and regulations relating to the conduct of its business, and comply with all obligations in relation to Cardmember disputes, transaction processing, authorization, submission and protecting of Cardmember information;

(23)Merchant must not discourage any AMEX Cardmembers from using AMEX Cards.  If Merchant surcharges AMEX Cardmembers such surcharge must not exceed any surcharge applied to any other type of credit card. Merchant must not discourage any AMEX Cardmembers from using AMEX Cards.

(24)Merchant’s refund polices must be disclosed to AMEX Cardmembers at the time of purchase and in compliance with applicable law. Refund policies for purchases on AMEX cards must at be at least as favorable as for other payment methods. 

(25)AMEX liability shall be limited as provided in the American Express Merchant Operating Guide and any other AMEX governing rules. 

(26)Merchant shall be bound by any industry-specific requirements that are notified by AMEX. 

(27)Merchant website shall not contain any libelous, defamatory, obscene, pornographic, racist or profane material or any other information or content that may cause harm to any individuals or to the AMEX brand. 

(28)Merchant shall use the appropriate merchant category code in all authorization requests and presentment messages..

EXHIBIT 3

Tib Finance Party As Merchant of Record (Additional Terms and Conditions)

Subject to the terms and conditions of this Agreement, in the Territory during the Term by means of the Tib Finance Merchant ID, Tib Finance will process transactions for payment from End-User Customers for Products from Tib Finance as Merchant of Record.

Merchant is the party providing goods and services (“Products”) to be marketed and sold through Tib Finance. Merchant of Record is the party formally recorded as conducting the payment transaction with an End-User Customer

Where Tib Finance provides the Services through the Tib Finance Merchant ID, it is agreed that Tib Finance has license from the Merchant to perform such sales transactions through the Tib Finance Merchant ID. Tib Finance Merchant ID refers to Tib Finance’s account(s) at recognized Acquirer(s) and used by Tib Finance to process payment for Products.

Merchant gives Tib Finance a worldwide non-exclusive, royalty-free and non-transferable license to market and be the merchant for Merchant’s Products to End-User Customers and where appropriate to permit Merchant’s or Tib Finance’s delivery of digital titles and/or relevant license keys and/or product activation codes to End-User Customers through the Internet and/or other networks. In marketing Product transactions through Tib Finance, Merchant shall identify Tib Finance as a reseller or Merchant of the Products, and shall not remove or cause to be removed from the Tib Finance System any written statement identifying Tib Finance as the online merchant. Tib Finance shall be the Merchant with respect to such transactions to End-User Customers, and shall be responsible for delivering an electronic invoice/receipt to End-User Customers in the name of Tib Finance.

Tib Finance takes ownership of Products sold, and for which payments are processed, under this Agreement and takes primary responsibility, with assistance from the provider of the Products, for said Products. The End-User Customer is informed at time of sale of Tib Finance as Merchant of record.

Merchant warrants that it has all right, title and license in Products to permit Tib Finance the right of processing the transaction with Tib Finance as the merchant of record. In the event that Merchant breaches this warranty, Tib Finance may immediately suspend or terminate Services for Merchant.

Merchant shall comply with all applicable European Union, UK, and country where merchant is registered/located, laws and regulations as from time to time in force regarding data protection, consumer rights, ecommerce, provision of services, consumer rights, protection and contracts. Merchant is further referred to the best practices information published by Tib Finance for guidance purposes on its web site relating to such EU and UK provisions. Merchant agrees to the data protection provisions set forth in the exhibits to these Merchant Terms and Conditions.

Merchant is primarily responsible to provide warranty, maintenance, technical or product support services for the Products. Merchant is primarily responsible to End-User Customer for any liabilities related to Merchant’s fulfillment of Product orders, EULAs entered into by End-User Customer, or use of Products by End-User Customer. As regards End-User Customers, Tib Finance shall assume provision of warranty, maintenance, technical or product support services and liability for Products in accordance with relevant law. When required under applicable law as applies to the business relationship hereunder, Tib Finance shall charge, collect and pay taxes to the appropriate authorities; otherwise the Merchant shall have sole responsibility and liability to collect and remit taxes. To the extent that Merchant is required under applicable law to charge, collect and pay taxes, said taxes shall be paid by Merchant directly to the appropriate authorities.

TIB FINANCE DOES NOT ASSUME ANY LIABILITY FOR MERCHANT’S FAILURE TO PERFORM

IN ACCORDANCE WITH THIS AGREEMENT OR ANY RESULTS CAUSED BY MERCHANT’S

ACTS, OMISSIONS OR NEGLIGENCE, OR A SUBCONTRACTOR OR AN AGENT OF MERCHANT

OR      AN    EMPLOYEE    OF    MERCHANT    OR    ANY    OF    MERCHANT’S    AGENTS      OR

SUBCONTRACTORS, NOR SHALL TIB FINANCE HAVE ANY LIABILITY FOR CLAIMS OF THIRD

PARTIES, INCLUDING, BUT NOT LIMITED TO, CLAIMS OF THIRD PARTIES ARISING OUT OF

OR RESULTING FROM, OR IN CONNECTION WITH, MERCHANT’S PRODUCTS (EXCEPT AS

MAY ARISE THROUGH TIB FINANCE ACTING AS MERCHANT OF RECORD), MESSAGES,

PROGRAMS, CALLER CONTRACTS, PROMOTIONS, ADVERTISING, INFRINGEMENT, OR ANY CLAIM FOR LIBEL OR SLANDER OR FOR MERCHANT’S VIOLATION OF COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHTS.

EXHIBIT 4

FURTHER TERMS APPLICABLE TO US MERCHANTS

Acquirers are:

US:	Fifth Third Bank (Vantiv)	Santander Bank
	NA 906 Main Street	75 State Street
	Cincinnati OH	Boston, MA 02109
	800-972-3030	877-768-2265
	Wells Fargo Bank, NA	Bank of America, N.A.
	Concord, CA 94524	1231 Durrett Lane, Louisville, KY 40213
		800-430-7161

Applicable To Merchant Boarded With Vantiv (now known as FIS) As Acquirer

This MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS (“Agreement”) is made among VANTIV,

LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384 and its designated Acquirer Member Bank (collectively “Acquirer”) and Tib Finance Merchant (“Sub-merchant”) in connection with the agreement between Sub-merchant and Tib Finance, Inc. (“Provider”).

Acquirer will provide Sub-merchant with certain payment processing services (“Services”) in accordance with the terms of this Agreement.  In consideration of Sub-merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with MasterCard International Inc. ("MasterCard"), VISA U.S.A. Inc. ("VISA"), Discover (“Discover”), and certain similar entities (collectively, “Associations), Sub-merchant is required to comply with the Operating Regulations (defined below) as they pertain to applicable credit and debit card payments. In addition, if Sub-merchant meets certain requirements under the Operating Regulations or an Association or the Operating Regulations otherwise require, Sub-merchant may be required to enter into a direct relationship with an entity that is a member of the Associations.  By executing this Agreement, Sub-merchant has fulfilled such requirement. However, Acquirer understands that Sub-merchant may have contracted with Provider to obtain certain processing services and that Provider may have agreed to be responsible to Sub-merchant for all or part of Sub-merchant’s obligations contained herein.

NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:

1.Certain Sub-merchant Responsibilities. Sub-merchant agrees to comply, and to cause third parties acting as Sub-merchant’s agent (“Agents”) to comply, with the Association’s and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site Data

Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively "Operating Regulations"). Sub-merchant may review the VISA, MasterCard, and Discover websites for a copy of the Visa, MasterCard and Discover regulations. The websites are: http://usa.visa.com/merchants/and http://www.mastercard.com/us/merchant/and http://www.discovernetwork.com/merchants/.Sub- merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”). Without limiting the foregoing, Sub-merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the Bank Secrecy Act, the US Treasury’s Office of Foreign Assets Control (OFAC) and the Federal Trade Commission. For purposes of this section, Agents include, but are not limited to, Sub-merchant’s software providers and/or equipment providers.

If appropriately indicated in Sub-merchant’s agreement with Provider, Sub-merchant may be a limited- acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and MasterCard card types (i.e., consumer credit, consumer debit, and commercial cards) and must display appropriate signage to indicate the same.  Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.

Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sales m a d e by Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities.

Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Sub-merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Submerchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 –Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand.

2.Sub-merchant Prohibitions. Sub-merchant must not i) require a cardholder to complete a postcard or similar device that includes the cardholder’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 a Submerchant impose a tax (any tax amount, if allowed, must be included in the transaction amount and not collected separately), iii) request or use an account number for any purpose other than as payment for its goods or services, iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub-merchant,

v) disburse funds in the form of cash unless Sub-merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Submerchant), or Sub-merchant is participating in a cash back service, vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Sub-merchant, irrespective of cardholder approval, vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt, viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable, or ix) submit a transaction that represents collection of a dishonored check. Submerchant further agrees that, under no circumstance, will Sub-merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Sub-merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.

3.Settlement. Upon receipt of Sub-merchant’s sales data for card transactions, Acquirer will process Sub- merchant’s sales data to facilitate the funds transfer between the various Associations and Sub-merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Sub-merchant, either directly to the Sub-merchant-Owned Designated Account or through Provider to an account designated by Provider (“Provider Designated Account”), at Acquirer’s discretion, for such card transactions. Sub-merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer of its settlement obligation to Sub-merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub-merchant. Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit Sub-merchant’s designated demand deposit account (“Submerchant-Owned Designated Account”) upon receipt of such account information from Sub-merchant or Provider, or if Acquirer deposits settlement funds into the Sub-merchant-Owned Designated Account. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub-merchant or Provider.

4.Term and Termination. This Agreement shall be binding upon Sub-merchant upon Sub-merchant’s execution.  The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number, and shall be coterminous with Provider’s agreement with Sub-merchant.

Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this

Agreement without notice if (i) Sub-merchant or Provider fails to pay any amount to Acquirer when due, (ii) in

Acquirer's opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating

Regulations or any Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the

Operating Regulations or the Laws, (iv) Acquire determines Sub-merchant poses a financial or regulatory risk to

Acquirer or an Association, (v) Acquirer’s agreement with Provider terminates, (vi) any Association deregisters Provider, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by any of the Associations.

5.Limits of Liability.  Sub-merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach.

EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS

ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED

WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.   Sub-merchant’s

sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement.   In the event that Sub-merchant has any claim arising in connection with the Services, rights, and/or obligations defined in this Agreement, Sub-merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations.  In no event shall Acquirer have any liability to Sub-merchant with respect to this Agreement or the Services. Sub- merchant acknowledges Acquirer is only providing this Agreement to assist in Provider’s processing relationship with Sub-merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Submerchant by Provider.  If Provider is unable to provide its services to Sub-merchant in connection with this Agreement and Acquirer elects to provide those services directly, Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then current Bank Card Merchant Agreement, which would be provided to Sub-merchant, will govern Acquirer’s relationship with Submerchant. If Provider subsequently provides its services to Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Provider and this Agreement will govern Acquirer’s relationship with Sub- merchant.

6.Miscellaneous. This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Agreement may not be assigned by Sub- merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. Acquirer may amend this Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement “Member Bank” as used in this Agreement shall mean a member of VISA, MasterCard and/or Discover, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank shall be Fifth Third Bank, an Ohio Banking Corporation, located in Cincinnati, OH 45263. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another party by Acquirer at any time without notice to Sub-merchant.

Applicable To Merchant Boarded With Santander Bank NA As Acquirer

SUB-MERCHANT PROCESSING AGREEMENT

Tib Finance, Inc. (“Payment Facilitator”) and Santander Bank, N.A. (“Bank”) collectively “we”, us” or “our” will provide Merchant (“Sub-Merchant”, “you” or “your”) with certain Card processing services. Capitalized terms used in this Agreement are referred to in Appendix 1.

By entering into this Sub-Merchant Processing Agreement (the “Agreement”), you agree to comply with the (1) Card Organization Rules as they pertain to Card information you receive through the Payment Facilitator service and (2) Your Card Acceptance Guide.

Acceptance of Cards

You agree to comply with Your Card Acceptance Guide and all Card Organization Rules, as such may be changed from time to time. You understand that we may be required to modify Your Card Acceptance Guide and the Agreement from time to time in order to comply with requirements imposed by the Card Organizations.

In offering payment options to your customers, you may elect any one of the following options: (1) Accept all types of Visa and MasterCard cards, including consumer credit and debit/check cards, and commercial credit and debit/check cards; (2) Accept only Visa and MasterCard credit cards and commercial cards (If you select this option, you must accept all consumer credit cards (but not consumer debit/check cards) and all commercial card products, including business debit/check cards); or (3) Accept only Visa and MasterCard consumer debit/check cards (If you select this option, you must accept all consumer debit/check card products (but not business debit/check cards) and refuse to accept any kind of credit cards). The acceptance options above apply only to domestic transactions.

If you choose to limit the types of Visa and MasterCard cards you accept, you must display appropriate signage to indicate acceptance of the limited acceptance category you have selected (that is, accept only debit/check card products or only credit and commercial products).

For recurring transactions, you must obtain a written request or similar authentication from your customer for the goods and/or services to be charged to the customer’s account, specifying the frequency of the recurring charge and the duration of time during which such charges may be made.

Settlement

Upon our receipt of the Transaction Data for Card transactions, we will process the Transaction Data to facilitate the funds transfer from the various Card Organizations for the Card sales. After we receive credit for such Transaction Data, subject to our other rights under this Agreement, we will provide provisional credit to your Settlement Account.

You must not submit transactions for payment until the goods are delivered shipped, or the services are performed. If the Cardholder disputes being charged for merchandise or services before receiving them, a Chargeback may result.

Chargebacks

Chargebacks can be received for a number of reasons. The following are some of the most common reasons for Chargebacks: (1) a refund is not issued to a customer upon the return or non-delivery of goods or services; (2) an authorization/approval code was required and not obtained; (3) the transaction was allegedly fraudulent; (4) the customer disputes the Card sale or the signature on the sale documentation, or claims that the sale is subject to a set-off, defense or counterclaim; or (5) The customer refuses to make payment for a Card sale because in the customer's good faith opinion, a claim or complaint has not been resolved, or has been resolved but in an unsatisfactory manner.  Fees

You agree to pay Payment Facilitator the fees associated with the provision of the services contemplated hereunder as reserved in your agreement with Payment Facilitator.

Reserve

You acknowledge that in addition to any other rights afforded us hereunder, we may establish a reserve account to satisfy your obligations or potential obligations under this Agreement (the “Reserve Account”), which may be funded by: (i) demand and receive immediate payment for such amounts; (ii) debit the account identified in the Settlement Account; (iii) withhold your settlement payments until all amounts are paid, (iv) delay presentation of your refunds until you make a payment to us of a sufficient amount to cover the Reserve Account; and (v) pursue any remedies we may have at law or in equity.

The Reserve Account will contain sufficient funds to cover any unbilled processing costs plus our estimated exposure based on reasonable criteria for Chargebacks, fines, returns and unshipped merchandise and/or unfulfilled services. We may (but are not required to) apply funds in the Reserve Account toward, and may set off any funds that would otherwise be payable to you against, the satisfaction of any amounts which are or become due from you pursuant to this Agreement. The Reserve Account will not bear interest, and you will have no right or interest in the funds in the Reserve Account; provided that upon satisfaction of all of your obligations under this Agreement, we will pay to you any funds then remaining in the Reserve Account. Any funds in the Reserve Account may be commingled with other funds, and need not be maintained in a separate account. Effective upon our establishment of a Reserve Account, you irrevocably grant to us a security interest in any and all funds, together with the proceeds thereof, that may at any time be in our possession and would otherwise be payable to you pursuant to the terms of this Agreement. You agree to execute and deliver to us such instruments and documents that we may reasonably request to perfect and confirm the security interest and right of setoff set forth in this Agreement. The parties’ rights and obligations under this Section shall survive termination of this Agreement.

Financial Information

Upon request, you will provide us with financial statements. Such financial statements shall be prepared in accordance with generally accepted accounting principles. You will also provide other information concerning your business and your compliance with the terms and provisions of this Agreement as we may reasonably request.

Data Security and Privacy

You represent to us that you do not have access to Card information (such as the cardholder’s account number, expiration date, and CVV2) and you will not request access to such Card information from us. In the event that you receive such Card information in connection with the processing services provided under this Agreement, you agree that you will not use it for any fraudulent purpose or in violation of any Card Organization Rules, including but not limited to Payment Card Industry Data Security Standards (“PCI DSS”) or applicable law. If at any time you believe that Card information has been compromised, you must notify us promptly and assist in providing notification to the proper parties. You must ensure your compliance and that of any third party service provider utilized by you, with all security standards and guidelines that are applicable to you and published from time to time by Visa, MasterCard or any other Card Organization, including, without limitation, the Visa U.S.A. Cardholder Information Security Program (“CISP”), the MasterCard Site Data Protection (“SDP”), and (where applicable), the

PCI Security Standards Council, Visa, and MasterCard PA-DSS (“Payment Application Data Security Standards”) (collectively, the "Security Guidelines"). If any Card Organization requires an audit of you due to a data security compromise event or suspected event, you agree to cooperate with such audit. You may not use any Card information other than for the sole purpose of completing the transaction a u t h o r i z e d by the customer for which the information was provided to you, or as specifically allowed by Card Organization Rules, Your Card Acceptance Guide or required by law.

 Term; Events of Default

This Agreement shall be in effect upon signing by of each document by all parties and shall remain effective through the initial term of 1 year and shall thereafter automatically continue until terminated by either party upon the provision of thirty (30) days notice to the other party.

If any of the following events shall occur (each an “Event of Default”):

(i)a material adverse change in your business, financial condition, business procedures, prospects, products or services;

(ii)or any assignment or transfer of voting control of you or your parent;

(iii)or  a sale of all or a substantial portion of your assets; or

(iv)irregular Card sales by you, excessive Chargebacks, noncompliance with any applicable data security standards, as determined by us, of any Card Organization, or any other entity, or an actual or suspected data security breach, or any other circumstances which, in our sole discretion, may increase our exposure for your Chargebacks or otherwise present a financial or security risk to us; or

(v)any of your conditions, covenants, obligations or representations or warranties in this Agreement are breached in any material respect or are incorrect in any material respect when made or deemed to be made; or

(vi)you shall file a petition or have a petition filed by another party under the Bankruptcy Code or any other laws relating to bankruptcy, insolvency or similar arrangement for adjustment of debts; consent to or fail to contest in a timely and appropriate manner any petition filed against you in an involuntary case under such laws; apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of a substantial part of its property; or make a general assignment for the benefit of creditors; or take any corporate action for the purpose of authorizing any of the foregoing; or

(vii)a violation by you of any applicable law or Card Organization Rule or our reasonable belief that termination of this Agreement or suspension of services is necessary to comply with any law including without limitation the rules and regulations promulgated by the Office of Foreign Assets Control of the US Department of the Treasury or your breach, as determined by Servicers, of your requirement to comply with all applicable laws.

then, upon the occurrence of (1) an Event of Default specified in subsections (iv), (v), (vi), or (vii) we may consider this Agreement to be terminated immediately, without notice, and all amounts payable hereunder shall be immediately due and payable in full without demand or other notice of any kind, all of which are expressly waived by you, and (2) any other Event of Default, this Agreement may be terminated by us giving not less than 10 days’ notice to you, and upon such notice all amounts payable hereunder shall be due and payable on demand.

Neither the expiration nor termination of this Agreement shall terminate the obligations and rights of the parties pursuant to provisions of this Agreement which by their terms are intended to survive or be perpetual or irrevocable. Such provisions shall survive the expiration or termination of this Agreement. All obligations by you to pay or reimburse us for any obligations associated with transactions you have submitted to us are intended to survive termination of this Agreement.

If any Event of Default shall have occurred and regardless of whether such Event of Default has been cured, we may, in our sole discretion, exercise all of our rights and remedies under applicable law, and this Agreement. The Card Organizations often maintain lists of merchants who have had their merchant agreements or Card acceptance rights terminated for cause. If this Agreement is terminated for cause, you acknowledge that we may be required to report your business name and the names and other information regarding its principals to the Card Organizations for inclusion on such list(s). You expressly agree and consent to such reporting if you are terminated as a result of the occurrence of an Event of Default or for any reason specified as cause by the Card Organizations. Furthermore, you agree to waive and hold us harmless from and against any and all claims which you may have as a result of such reporting.

In the event we provide notice to you of an increase in the fees for Services, you may terminate this Agreement without further cause or penalty by providing us 30 days advance written notice of termination. You must terminate within 30 days after we provide notice of the fee increase. However, maintaining your account with us or your continued use of our Services after the effective date of any increase shall be deemed acceptance of the increased fees for Services, throughout the term of this Agreement.

We may terminate this Agreement at any time and for any or no reason upon the provision of thirty (30) days prior notice. We may also temporarily suspend or delay payments to you during our investigation of any issue and/or designate an amount of funds that we must maintain in order to protect us against the risk of, among other things, existing, potential, or anticipated Chargebacks arising under this Agreement or other amounts that may be owing to us under this Agreement.

Warranties; Exclusion of Consequential Damages; Limitation on Liability

This Agreement and any addenda is an agreement for services and except as expressly provided in this Agreement, and any addenda, we and our affiliates disclaim all representations or warranties, express or implied, made to merchant or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise (regardless of any course of dealing, custom or usage of trade) of any services or any goods provided incidental to the Services provided under this Agreement.

Notwithstanding anything in this in this Agreement and any addenda to the contrary, in no event shall we or our affiliates be liable under any theory of tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages.

Notwithstanding anything in this Agreement and any addenda to the contrary, we and our affiliates’ cumulative liability, in the aggregate (inclusive of any and all claims made by Sub-Merchant against us and/or our affiliates, whether related or unrelated) for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this Agreement any addenda) and regardless of the form of action or legal theory shall not exceed the lesser of (i) $100,000; or (ii) the amount of fees received by us pursuant to any addenda attached and incorporated herein for services performed in the immediately preceding 12 months.

Confidentiality

Each party acknowledges and agrees that the other may be providing to it and that it may become aware of the confidential and proprietary information of the other party, including but not limited to, the terms of this Agreement, financial information and other information related to each party’s business operations. Each party agrees that it will maintain the confidentiality of such information and neither party shall disclose any such information to any other person or entity (other than to those of its employees, agents, contractors, representatives and affiliates to whom disclosure is reasonably necessary in furtherance of the performance of this Agreement). Notwithstanding the foregoing, the requirements of non-disclosure shall not apply to any information which: (a) at the time of disclosure is already in the possession of the receiving party; (b) is independently developed by the receiving party without reliance on the disclosed confidential or proprietary information; (c) is or becomes publicly available through no wrongdoing of the receiving party or (d) becomes available to receiving party on a non-confidential basis from a person, other than the disclosing party, who is not bound by a confidentiality obligation or otherwise restricted from transmitting the information to the receiving party. Furthermore, this section shall not prohibit the receiving party from making legally required disclosures pursuant to subpoena, court order or the order of any other authority having jurisdiction; provided that receiving party shall provide disclosing party with prompt notice, unless prohibited by law or court order, thereof so that disclosing party may seek an appropriate protective order or other remedy. If in the absence of a protective order or other remedy or waiver of the terms of this section, if receiving party determines in its sole discretion that it is required by law, regulation, legal process or regulatory authority to disclose any such confidential or proprietary information, receiving party may disclose such information upon written notice to disclosing party unless prohibited by law or court order.

Visa and MasterCard Disclosure

Member Bank Name: Santander Bank, N.A.

Bank mailing address:  75 State Street, Boston, MA 02109

Bank Phone Number:   877-768-2265

Important Member Bank Responsibilities

(a)The Bank is the only entity approved to extend acceptance of   Visa and MasterCard products directly to a merchant.

(b)The Bank must be a principal (signer) to the Sub-Merchant Agreement.

(c)The Bank is responsible for educating Sub-Merchants on pertinent Visa and MasterCard Rules with which Sub- Merchants must comply; but this information may be provided to you by Payment Facilitator.

(d)The Bank is responsible for and must provide settlement funds to the Payment Facilitator, for distribution to the Sub- Merchant.

(e)The Bank is responsible for all funds held in reserve that are derived from settlement.

Important Sub-Merchant Responsibilities

(a)In the event Sub-Merchant obtains Card Information, ensure compliance with Cardholder data security and storage requirements.

(b)Review and understand the terms of the Agreement.

Miscellaneous

Compliance with Laws. Each party agrees to comply with all laws, regulations and Card Organization Rules applicable to it and each are responsible for their own costs and compliance of such.

Force Majeure. No party shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused directly or indirectly by a force majeure event. In any such event, the non-performing party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable.

Notices. All notices and other communications required or permitted hereunder (other than those involving normal operational matters relating to the Services) shall be in writing, if to Sub-Merchant, at your address appearing on the first page of this Agreement or by any electronic means, including but not limited to the email address you have provided to us, if to Payment Facilitator at 800 South Street, Suite 640, Waltham, MA 02453 and if to Bank, to the address provided above. Notice shall be deemed to have been given, if sent by mail or courier, when received and if sent by facsimile machine, when the confirmation copy is actually received. Notice given in any other manner, including by electronic means, shall be effective when delivered.

Indemnification. The parties agree to indemnify each other from and against any losses, actions, causes of action, claims, demands, costs, liabilities, expenses, damages, sanctions fines, legal fees or penalties arising from: (i) a party’s misrepresentation or breach of warranty, covenant, or any provision under this Agreement; or (ii) a party’s employees’/agents’ fraud, gross negligence, willful misconduct or failure to comply with this Agreement and the Card Organization Rules.

Publicity. No party shall make any press release or other public disclosure concerning the terms and conditions of this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld).

Entire Agreement; Waiver. This Agreement constitutes the entire agreement between the parties with respect to the subject matter thereof, and supersedes any previous agreements and understandings. Except as provided in this Agreement, this Agreement can be changed only by a written agreement signed by all parties. A party's waiver of a breach of any term or condition of this Agreement shall not be deemed a waiver of any subsequent breach of the same or another term or condition.

Severability. The parties intend every provision of this Agreement and any addenda to be severable. If any part of this Agreement and any addenda are not enforceable, the remaining provisions shall remain valid and enforceable. In such case, the parties will in good faith modify or substitute a provision consistent with their original intent. If any remedy fails of its essential purpose, then all other provisions, including the limitations on liability and exclusion of damages, will remain fully effective.

Appendix 1 Definitions

“Affiliate”is an entity that, directly or indirectly, (i) owns or controls a party to this agreement or (ii) is under common ownership or control with a party to this agreement.

“Card” is an account, or evidence of an account, authorized and established between a customer and a Card Organization, or representatives or members of a Card Organization that is accepted from customers. Cards include, but are not limited to, other Card brands and debit cards, electronic gift cards, authorized account or access numbers, paper certificates, credit accounts and the like.

“Card Organization”is any entity formed to administer and promote Cards, including without limitation MasterCard Worldwide (“MasterCard”), Visa U.S.A., Inc. (“Visa”), DFS Services LLC (“Discover Network”) and any applicable debit networks.

“Card Organization Rules” are the rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Card Organization.

“Chargeback” is a Card transaction dispute (or disputed portion) that is returned to us by the Issuer. Sub- Merchant is responsible for payment to Payment Facilitator for all Chargebacks.

“Your Card Acceptance Guide” mean our operating rules and regulations, attached hereto and incorporated herein by reference, as may be changed by us from time to time.

Reserve Account” means an account established and funded at our request or on your behalf, pursuant to the Reserve section of the Agreement.

“Retrieval Request” is a request for information by a customer or Card Organization relating to a claim or complaint concerning a Transaction.

“Settlement Account” is an account or account(s) at a financial institution designated by Sub-Merchant as the account to be debited and credited by Payment Facilitator or Bank for Card transactions, fees, Chargebacks and other amounts due under the Agreement or in connection with the Agreement.

“Transaction” is a transaction conducted between a customer and Sub-Merchant utilizing a Card in which consideration is exchanged between the customer and Sub-Merchant.

“Transaction Data” is the written or electronic record of a Transaction.

Applicable To Merchant Boarded With Wells Fargo Bank, NA

SUB-MERCHANT PROCESSING AGREEMENT

Tib Finance Inc. (“Payment Facilitator”), with offices located at 800 South Street, Suite 640, Waltham, MA 02453, First

Data Merchant Services LLC  (“Provider”), and Wells Fargo Bank, N.A. (“Bank”)  (Payment Facilitator, Provider and Bank collectively “we”, us” or “our”) will provide Merchant and (“Sub-Merchant”, “you” or “your”) with certain Card processing services. Capitalized terms used in this Agreement are referred to in Appendix 1.

By entering into this Sub-Merchant Processing Agreement (the “Agreement”), you agree to comply with the (1) Card Organization Rules as they pertain to Card information you receive through the Payment Facilitator service and (2) Your Card Acceptance Guide.    

Acceptance of Cards

You agree to comply with Your Card Acceptance Guide and all Card Organization Rules, as such may be changed from time to time. You understand that we may be required to modify Your Card Acceptance Guide and the Agreement from time to time in order to comply with requirements imposed by the Card Organizations.  

In offering payment options to your customers, you may elect any one of the following options: (1) Accept all types of Visa and MasterCard cards, including consumer credit and debit/check cards, and commercial credit and debit/check cards;  (2) Accept only Visa and MasterCard credit cards and commercial cards (If you select this option, you must accept all consumer credit cards (but not consumer debit/check cards) and all commercial card products, including business debit/check cards); or (3) Accept only Visa and MasterCard consumer debit/check cards (If you select this option, you must accept all consumer debit/check card products (but not business debit/check cards) and refuse to accept any kind of credit cards).  The acceptance options above apply only to domestic transactions.    

If you choose to limit the types of Visa and MasterCard cards you accept, you must display appropriate signage to indicate acceptance of the limited acceptance category you have selected (that is, accept only debit/check card products or only credit and commercial products).

For recurring transactions, you must obtain a written request or similar authentication from your customer for the goods and/or services to be charged to the customer’s account, specifying the frequency of the recurring charge and the duration of time during which such charges may be made.

Settlement

Upon our receipt of the Transaction Data for Card transactions, we will process the Transaction Data to facilitate the funds transfer from the various Card Organizations for the Card sales.  After we receive credit for such Transaction Data, subject to our other rights under this Agreement, we will provide provisional credit to your Settlement Account. 

You must not submit transactions for payment until the goods are delivered shipped, or the services are performed.  If the Cardholder disputes being charged for merchandise or services before receiving them, a Chargeback may result.  

Chargebacks

Chargebacks can be received for a number of reasons.  The following are some of the most common reasons for Chargebacks: (1) a refund is not issued to a customer upon the return or non-delivery of goods or services; (2) an authorization/approval code was required and not obtained; (3) the transaction was allegedly fraudulent; (4) the customer disputes the Card sale or the signature on the sale documentation, or claims that the sale is subject to a setoff, defense or counterclaim; or (5) The customer refuses to make payment for a Card sale because in the customer's good faith opinion, a claim or complaint has not been resolved, or has been resolved but in an unsatisfactory manner.  

Fees

Pursuant to Appendix 2, you agree to pay Payment Facilitator the fees associated with the provision of the services contemplated hereunder.    

Reserve

You acknowledge that in addition to any other rights afforded us hereunder, we may establish a reserve account to satisfy your obligations or potential obligations under this Agreement (the “Reserve Account”), which may be funded by: (i) demand and receive immediate payment for such amounts; (ii) debit the account identified in the Settlement Account; (iii) withhold your settlement payments until all amounts are paid, (iv) delay presentation of your refunds until you make a payment to us of a sufficient amount to cover the Reserve Account; and (v) pursue any remedies we may have at law or in equity.  

The Reserve Account will contain sufficient funds to cover any unbilled processing costs plus our estimated exposure based on reasonable criteria for Chargebacks, fines, returns and unshipped merchandise and/or unfulfilled services. We may (but are not required to) apply funds in the Reserve Account toward, and may set off any funds that would otherwise be payable to you against, the satisfaction of any amounts which are or become due from you pursuant to this Agreement. The Reserve Account will not bear interest, and you will have no right or interest in the funds in the Reserve Account; provided that upon satisfaction of all of your obligations under this Agreement, we will pay to you any funds then remaining in the Reserve Account.  Any funds in the Reserve Account may be commingled with other funds, and need not be maintained in a separate account.  Effective upon our establishment of a Reserve Account, you irrevocably grant to us a security interest in any and all funds, together with the proceeds thereof, that may at any time be in our possession and would otherwise be payable to you pursuant to the terms of this Agreement. You agree to execute and deliver to us such instruments and documents that we may reasonably request to perfect and confirm the security interest and right of setoff set forth in this Agreement.  The parties’ rights and obligations under this Section shall survive termination of this Agreement.

Financial Information

Upon request, you will provide us with financial statements.  Such financial statements shall be prepared in accordance with generally accepted accounting principles. You will also provide other information concerning your business and your compliance with the terms and provisions of this Agreement as we may reasonably request.  

Data Security and Privacy

You represent to us that you do not have access to Card information (such as the cardholder’s account number, expiration date, and CVV2) and you will not request access to such Card information from us.   In the event that you receive such Card information in connection with the processing services provided under this Agreement, you agree that you will not use it for any fraudulent purpose or in violation of any Card Organization Rules, including but not limited to Payment Card Industry Data Security Standards (“PCI DSS”) or applicable law.  If at any time you believe that Card information has been compromised, you must notify us promptly and assist in providing notification to the proper parties.  You must ensure your compliance and that of any third party service provider utilized by you, with all security standards and guidelines that are applicable to you and published from time to time by Visa, MasterCard or any other Card Organization, including, without limitation, the Visa U.S.A. Cardholder Information Security Program

(“CISP”), the MasterCard Site Data Protection (“SDP”), and (where applicable), the PCI Security Standards Council,

Visa, and MasterCard PA-DSS (“Payment Application Data Security Standards”) (collectively, the "Security Guidelines").  If any Card Organization requires an audit of you due to a data security compromise event or suspected event, you agree to cooperate with such audit.  You may not use any Card information other than for the sole purpose of completing the transaction authorized by the customer for which the information was provided to you, or as specifically allowed by Card Organization Rules, Your Card Acceptance Guide or required by law.

Term; Events of Default

This Agreement shall be in effect upon signing by of each document by all parties and shall remain effective through the initial term of three (3) years and shall thereafter automatically continue until terminated by either party upon the provision of thirty (30) days notice to the other party.  

If any of the following events shall occur (each an “Event of Default”):

(i)a material adverse change in your business, financial condition, business procedures, prospects, products or services; or

(ii)any assignment or transfer of voting control of you or your parent; or

(iii)a sale of all or a substantial portion of your assets; or

(iv)irregular Card sales by you, excessive Chargebacks, noncompliance with any applicable data security standards, as determined by us, of any Card Organization, or any other entity, or an actual or suspected data security breach, or any other circumstances which, in our sole discretion, may increase our exposure for your Chargebacks or otherwise present a financial or security risk to us; or 

(v)any of your conditions, covenants, obligations or representations or warranties in this Agreement are breached in any material respect or are incorrect in any material respect when made or deemed to be made; or

(vi)you shall file a petition or have a petition filed by another party under the Bankruptcy Code or any other laws relating to bankruptcy, insolvency or similar arrangement for adjustment of debts; consent to or fail to contest in a timely and appropriate manner any petition filed against you in an involuntary case under such laws; apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of a substantial part of its property; or make a general assignment for the benefit of creditors; or take any corporate action for the purpose of authorizing any of the foregoing; or (vii) a violation by you of any applicable law or Card Organization Rule or our reasonable belief that termination of this Agreement or suspension of services is necessary to comply with any law including without limitation the rules and regulations promulgated by the Office of Foreign Assets Control of the US Department of the Treasury or your breach, as determined by Servicers, of your requirement to comply with all applicable laws. then, upon the occurrence of (1) an Event of Default specified in subsections (iv), (vi), (vii), or (viii) we may consider this Agreement to be terminated immediately, without notice, and all amounts payable hereunder shall be immediately due and payable in full without demand or other notice of any kind, all of which are expressly waived by you, and (2) any other Event of Default, this Agreement may be terminated by us giving not less than 10 days’ notice to you, and upon such notice all amounts payable hereunder shall be due and payable on demand.

Neither the expiration nor termination of this Agreement shall terminate the obligations and rights of the parties pursuant to provisions of this Agreement which by their terms are intended to survive or be perpetual or irrevocable. Such provisions shall survive the expiration or termination of this Agreement. All obligations by you to pay or reimburse us for any obligations associated with transactions you have submitted to us are intended to survive termination of this Agreement.

If any Event of Default shall have occurred and regardless of whether such Event of Default has been cured, we may, in our sole discretion, exercise all of our rights and remedies under applicable law, and this Agreement.

The Card Organizations often maintain lists of merchants who have had their merchant agreements or Card acceptance rights terminated for cause. If this Agreement is terminated for cause, you acknowledge that we may be required to report your business name and the names and other information regarding its principals to the Card Organizations for inclusion on such list(s). You expressly agree and consent to such reporting if you are terminated as a result of the occurrence of an Event of Default or for any reason specified as cause by the Card Organizations. Furthermore, you agree to waive and hold us harmless from and against any and all claims which you may have as a result of such reporting.

In the event we provide notice to you of an increase in the fees for Services, you may terminate this Agreement without further cause or penalty by providing us 30 days advance written notice of termination.  You must terminate within 30 days after we provide notice of the fee increase.  However, maintaining your account with us or your continued use of our Services after the effective date of any increase shall be deemed acceptance of the increased fees for Services, throughout the term of this Agreement.

We may terminate this Agreement at any time and for any or no reason upon the provision of thirty (30) days prior notice.  We may also temporarily suspend or delay payments to you during our investigation of any issue and/or designate an amount of funds that we must maintain in order to protect us against the risk of, among other things, existing, potential, or anticipated Chargebacks arising under this Agreement or other amounts that may be owing to us under this Agreement. 

Warranties; Exclusion of Consequential Damages; Limitation on Liability

This Agreement and any addenda is an agreement for services and except as expressly provided in this Agreement, and any addenda, we and our affiliates disclaim all representations or warranties, express or implied, made to merchant or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise (regardless of any course of dealing, custom or usage of trade) of any services or any goods provided incidental to the Services provided under this Agreement.

Notwithstanding anything in this in this Agreement and any addenda to the contrary, in no event shall we or our affiliates be liable under any theory of tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages.

Notwithstanding anything in this Agreement and any addenda to the contrary, we  and our  affiliates’ cumulative liability, in the aggregate (inclusive of any and all claims made by Sub-Merchant against us and/or our affiliates, whether related or unrelated) for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this Agreement any addenda) and regardless of the form of action or legal theory shall not exceed the lesser of (i) $100,000; or (ii) the amount of fees received by us pursuant to any addenda attached and incorporated herein for services performed in the immediately preceding 12 months.

Confidentiality

Each party acknowledges and agrees that the other may be providing to it and that it may become aware of the confidential and proprietary information of the other party, including but not limited to, the terms of this Agreement, financial information and other information related to each party’s business operations.  Each party agrees that it will maintain the confidentiality of such information and neither party shall disclose any such information to any other person or entity (other than to those of its employees, agents, contractors, representatives and Affiliates to whom disclosure is reasonably necessary in furtherance of the performance of this Agreement).  Notwithstanding the foregoing, the requirements of non-disclosure shall not apply to any information which: (a) at the time of disclosure is already in the possession of the receiving party; (b) is independently developed by the receiving party without reliance on the disclosed confidential or proprietary information; (c) is or becomes publicly available through no wrongdoing of the receiving party or (d) becomes available to receiving party on a non-confidential basis from a person, other than the disclosing party, who is not bound by a confidentiality obligation or otherwise restricted from transmitting the information to the receiving party.  Furthermore, this section shall not prohibit the receiving party from making legally required disclosures pursuant to subpoena, court order or the order of any other authority having jurisdiction; provided that receiving party shall provide disclosing party with prompt notice, unless prohibited by law or court order, thereof so that disclosing party may seek an appropriate protective order or other remedy.  If in the absence of a protective order or other remedy or waiver of the terms of this section, if receiving party determines in its sole discretion that it is required by law, regulation, legal process or regulatory authority to disclose any such confidential or proprietary information, receiving party may disclose such information upon written notice to disclosing party unless prohibited by law or court order.  

Visa and MasterCard Disclosure

Member Bank Name: Wells Fargo Bank, N.A. 

Bank mailing address: P.O. Box 6079, Concord, CA 94524

Bank Phone Number:  _________________________

Important Member Bank Responsibilities                                                Important Sub-Merchant Responsibilities 

(a)The Bank is the only entity approved to extend acceptance of Visa and MasterCard products directly to a merchant.

(b)The Bank must be a principal (signer) to the SubMerchant Agreement.

(c)The Bank is responsible for educating Sub-Merchants on pertinent Visa and MasterCard Rules with which Sub-Merchants must comply; but this information may be provided to you by Payment Facilitator.

(d)The Bank is responsible for and must provide settlement funds to the Payment Facilitator, for distribution to the SubMerchant.

(e)The Bank is responsible for all funds held in reserve that are derived from settlement.  

(a)In the event Sub-Merchant obtains Card

Information, ensure compliance with Cardholder data security and storage requirements.

(b)Maintain fraud and chargebacks below Card Organization thresholds. (c)Review and understand the terms of the Agreement.

(d)Comply with Card Organization Rules.

(e)Retain a signed copy of this Disclosures Page.

Miscellaneous

Compliance with Laws.  Each party agrees to comply with all laws, regulations and Card Organization Rules applicable to it and each are responsible for their own costs and compliance of such.  

Force Majeure.  No party shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused directly or indirectly by a force majeure event.  In any such event, the non-performing party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable.

Notices.All notices and other communications required or permitted hereunder (other than those involving normal operational matters relating to the Services) shall be in writing, if to Sub-Merchant, at your address appearing on the first page of this Agreement or by any electronic means, including but not limited to the e-mail address you have provided to us, if to Payment Facilitator at 800 South Street, Suite 640, Waltham, MA 02453 and if to Bank, to the address provided above.  Notice shall be deemed to have been given, if sent by mail or courier, when received and if sent by facsimile machine, when the confirmation copy is actually received. Notice given in any other manner, including by electronic means, shall be effective when delivered.  

Indemnification.  The parties agree to indemnify each other from and against any losses, actions, causes of action, claims, demands, costs, liabilities, expenses, damages, sanctions fines, legal fees or penalties arising from: (i) a party’s misrepresentation or breach of warranty, covenant, or any provision under this Agreement; or (ii) a party’s employees’/agents’ fraud, gross negligence, willful misconduct or failure to comply with this Agreement and the Card Organization Rules.

Publicity.  No party shall make any press release or other public disclosure concerning the terms and conditions of this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld).

Entire Agreement; Waiver. This Agreement constitutes the entire agreement between the parties with respect to the subject matter thereof, and supersedes any previous agreements and understandings.  Except as provided in this Agreement, this Agreement can be changed only by a written agreement signed by all parties.  A party's waiver of a breach of any term or condition of this Agreement shall not be deemed a waiver of any subsequent breach of the same or another term or condition. 

Severability. The parties intend every provision of this Agreement and any addenda to be severable. If any part of this Agreement and any addenda are not enforceable, the remaining provisions shall remain valid and enforceable.  In such case, the parties will in good faith modify or substitute a provision consistent with their original intent.  If any remedy fails of its essential purpose, then all other provisions, including the limitations on liability and exclusion of damages, will remain fully effective.

Appendix 1

Definitions

“Affiliate” is an entity that, directly or indirectly, (i) owns or controls a party to this agreement or (ii) is under common ownership or control with a party to this agreement.

“Card” is an account, or evidence of an account, authorized and established between a customer and a Card Organization, or representatives or members of a Card Organization that is accepted from customers.  Cards include, but are not limited to, other Card brands and debit cards, electronic gift cards, authorized account or access numbers, paper certificates, credit accounts and the like.

“Card Organization” is any entity formed to administer and promote Cards, including without limitation MasterCard Worldwide (“MasterCard”), Visa U.S.A., Inc. (“Visa”), DFS Services LLC (“Discover Network”) and any applicable debit networks.

“Card Organization Rules” are the rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Card Organization.

“Chargeback” is a Card transaction dispute (or disputed portion) that is returned to us by the Issuer. Sub-Merchant is responsible for payment to Payment Facilitator for all Chargebacks.

“Your Card Acceptance Guide”mean our operating rules and regulations, and incorporated herein by reference, as may be changed by us from time to time.

“Reserve Account”means an account established and funded at our request or on your behalf, pursuant to the Reserve section of the Agreement.   

“Retrieval Request” is a request for information by a customer or Card Organization relating to a claim or complaint concerning a Transaction.  

“Settlement Account” is an account or account(s) at a financial institution designated by Sub-Merchant as the account to be debited and credited by Payment Facilitator or Bank for Card transactions, fees, Chargebacks and other amounts due under the Agreement or in connection with the Agreement.

“Transaction” is a transaction conducted between a customer and Sub-Merchant utilizing a Card in which consideration is exchanged between the customer and Sub-Merchant. 

“Transaction Data” is the written or electronic record of a Transaction.

Appendix 2

Fees

See Fees with Payment Facilitator

Appendix 3  

Your Card Acceptance Guide

https://24dlmn2bqamt1e72kah59881-wpengine.netdna-ssl.com/wp-content/uploads/2020/07/Your-Payment-

Acceptance-Guide.pdf

 

Applicable to Merchant Boarded With Bank of America Merchant Services as Acquirer (US only)

This Sub-Merchant Processing Agreement (this “Agreement”) is entered into by and among Tib Finance, Inc. (“Tib Finance”), Banc of America Merchant Services, LLC (“BAMS”), Bank of America, N.A. (“Bank”), and the Merchant (“Sub-Merchant”) that has entered into the Tib Finance Agreement (defined below).  BAMS and Bank collectively are herein referred to as “Servicers”.  

        1.Definitions.

“Applicable Law” means all federal, state and local statutes, ordinances, laws, regulations and executive, administrative and judicial orders applicable to this Agreement, the transactions or other matters contemplated under this Agreement (including, the rules and regulations promulgated by the Office of Foreign Assets Control of the U.S. Department of the Treasury), and all amendments thereto.

“Card” means a card, code, device, or other means allowing access to a credit, debit, prepaid, stored value, or similar account.

“Cardholder” means the individual who was issued a Card.

“Card Organization” means any entity formed to administer and promote Cards, including Visa U.S.A., Inc., MasterCard International Incorporated and DFS Services LLC, and any applicable debit networks.

“Card Organization Rules” means the rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Card Organization and related authorities, including, those of the PCI Security Standards Council, LLC and the National Automated Clearing House Association.

“Chargeback” means a Card transaction (or disputed portion thereof) that is returned to Servicers by the Card issuer, the liability of which is the Sub-Merchant’s responsibility.

“Settlement Account” means an account titled in the name of Sub-Merchant at a financial institution into which Tib Finance, or in certain instances pursuant to Section 4.3 herein, Servicers, will settle the Transaction funds.

2.Services and Roles.

2.1Acquiring Services.  Sub-Merchant and Tib Finance have entered into an agreement (the “Tib Finance Agreement”) that allows Tib Finance, as a payment facilitator, to provide to Sub-Merchant authorization, processing, and settlement services relating to payment transactions made to Sub-Merchant by end-user customers (“Acquiring Services”).  Tib Finance has entered into a separate agreement with Servicers (“Servicers Agreement”) under which Servicers will provide similar acquiring services (“Servicer Services”) to Tib Finance for Tib Finance to resell to Tib Finance’s sub-merchants, including Sub-Merchant.

2.2Applicability of Agreement.  This Agreement applies to Sub-Merchant only to the extent that Servicer Services are performed by Servicers with respect to payment transactions initiated by Sub-Merchant under the Tib Finance Agreement (“Transactions”); this Agreement does not apply to any Transactions processed by other acquirers.  This Agreement is intended to supplement, not replace, the Tib Finance Agreement.  However, to the extent that there is a conflict between the terms and conditions in this Agreement and those in the Tib Finance Agreement that involves either or both Servicers, this Agreement will govern.  

2.3Bank.  Bank is the member of the Card Organizations that sponsors BAMS’ acquiring of card transactions accepted by Tib Finance and Sub-Merchant.  Bank provides to BAMS and/or Tib Finance sponsorship and settlement of certain Transactions submitted in accordance with the terms and conditions of the Servicers Agreement and the Card Organization Rules.  All other Servicer Services provided under the Servicers Agreement are provided by BAMS.  Notwithstanding anything to the contrary contained herein, Bank will not have any obligation or liability of any nature in connection with services of any kind provided under or pursuant to the Servicers Agreement or otherwise other than those services referenced as being provided by Bank in this paragraph. 

3.Compliance. At all times during the term of this Agreement, Sub-Merchant will comply with (i) the Card Organization Rules, including PCI DSS if applicable (as defined in Section 9.1), applicable to the Card types accepted by Sub-Merchant; and (ii) all Applicable Laws.  Sub-Merchant will review the Card Organization Rules from time to time for changes, and is responsible for staying up to date with all applicable changes to the Card Organization Rules.  Card Organization Rules are available on web sites maintained by the Card Organization, such as http://www.usa.visa.com/merchants/operations/op_regulations.html, and http://www.mastercardmerchant.com.

4.Settlement; Chargebacks.

4.1Settlement.  Upon Servicers’ receipt of the Transaction data for Transactions, Servicers process the Transaction data to facilitate the funds transfer from the various Card Organizations for Card sales.  After Servicers receive settlement funds from the Card Organizations for such Transactions, subject to other rights under this Sub-Merchant Agreement (e.g., set off rights), Servicers will, in their sole discretion, credit settlement funds either to Tib Finance, or directly to the Settlement Account on behalf of Tib Finance.

4.2Settlement to Tib Finance.  If Servicers settle to Tib Finance, Tib Finance will be responsible for sending settlement funds to Sub-Merchant in accordance with the Tib Finance Agreement.  Servicers disclaim all responsibility and liability relating to settlement to Sub-Merchant as more fully described in Section 13 below. 

4.3Settlement to Sub-Merchant.  Sub-Merchant and Tib Finance each acknowledge and agree that under certain circumstances, in their sole discretion Servicers shall have the right but not the obligation to send settlement funds on behalf of and for Tib Finance directly to the Settlement Account (e.g., at Sub-Merchant’s request, or as a result or in anticipation of increased settlement risk to Servicers associated with settlement to Tib Finance).  If Servicers elect to exercise such right:

(1)Servicers will notify Sub-Merchant of such election; 

(2)Sub-Merchant will designate, in writing, and maintain at a financial institution acceptable to

Servicers, a Settlement Account for the purposes of settling transactions submitted to Servicers by Tib Finance.  Sub-Merchant shall provide Servicers with all information requested by Servicers to effectuate such settlement (e.g., Settlement Account number and bank routing number); 

(3)Servicers will settle with Sub-Merchant for each transaction submitted to SERVICERS by

Tib Finance relating to Sub-Merchant after Servicers receive payment for that transaction from the related Card Organization, subject to the terms of this Agreement.

(4)Servicers shall have all rights to hold back, set off, withhold, or deduct from the settlement funds amounts that Sub-Merchant may owe to Services under this Agreement (e.g., impending Data Compromise Losses); 

(5)Servicers shall have all rights to hold back, set off, withhold, or deduct from the settlement funds any amounts that Sub-Merchant may owe to Tib Finance under the Tib Finance Agreement, and to remit such amounts to Tib Finance unless and to the extent that Tib Finance and Servicers agree otherwise;

(6)Servicers shall have all rights to hold back, set off, withhold, or deduct from the settlement

funds (and Sub-Merchant authorizes Servicers to debit from the Settlement Account) all Chargebacks, credits, and refunds relating to Transactions, amounts used to fund a Reserve hereunder, and fees, fines, penalties, or assessments imposed or on Servicers by Card Organizations or another third party arising out of acts or omissions by Sub-Merchant;

(7)Servicers disclaim all responsibility and liability relating to settlement to Sub-Merchant as more fully described in Section 13 below.

4.4Chargebacks.  Sub-Merchant shall not submit Transactions for payment until the goods are delivered shipped or the services are performed, unless otherwise allowed by Card Organization Rules or Applicable Law.  If the Cardholder disputes charges for merchandise or services before receiving them, a Chargeback may result.  Chargebacks can occur for a number of reasons.  The following are some of the most common reasons for chargebacks: (1) a refund is not issued to a Cardholder upon the return or non-delivery of goods or services;

(2) an authorization/approval code was required and not obtained; (3) the Transaction was allegedly fraudulent; (4) the Cardholder disputes the Card sale or the signature on the sale documentation, or claims that the sale is subject to a set-off, defense or counterclaim; or (5) The Cardholder refuses to make payment for a Card sale because in the Cardholder’s good faith opinion, a claim or complaint has not been resolved, or has been resolved but in an unsatisfactory manner.

5.Reporting; Customer Support.  Tib Finance (not Servicers) will be responsible for providing to Sub-Merchant all Transaction reporting and customer support in connection with the Acquiring Services, including all disputes arising under this Agreement.  Sub-Merchant shall raise any and all disputes under this Agreement with Tib Finance and not Servicers.

6.Fees.  All fees for Acquiring Services rendered to Sub-Merchant under the Tib Finance Agreement shall be paid by Sub-Merchant to Tib Finance in accordance with the Tib Finance Agreement, provided that if Servicers settle directly to Sub-Merchant Servicers may deduct such amounts from settlement and remit to Tib Finance in accordance with Section 4.3 above. 

7.Term; Termination.  

7.1Term.  This Agreement shall be effective as of the later of (i) the effective date of the Tib Finance Agreement, or (ii) the date on which Sub-Merchant is boarded on Servicers’ processing platform and given a merchant identification number.  This Agreement shall remain effective until terminated as set forth herein.

7.2Termination. This Agreement shall terminate upon the termination or expiration of the Tib Finance Agreement.  In addition, either Servicer may terminate this Agreement upon notice to Sub-Merchant and Tib Finance for any other reason, with or without cause.  Notwithstanding the foregoing, all provisions of this Agreement shall survive such termination only so long as, and to the extent that, Servicers continue to provide Acquiring Services to Sub-Merchant (1) relating to transactions submitted to Servicers prior to such termination or expiration (including but not limited to any trailing chargeback activity); and/or (2) pending the execution of a separate merchant agreement between Servicers and Sub-Merchant.

7.3Card Organization Reporting. If this Agreement is terminated for cause, Sub-Merchant acknowledges that Servicers may be required under the Card Organization Rules to report Sub-Merchant’s business name and the names and other identification of its principals to the Card Organizations. Sub-Merchant expressly agrees and consents to such reporting in the event Sub-Merchant is terminated for cause or for any reason specified by the Card Organization(s) as cause.  Furthermore, Sub-Merchant agrees to waive and hold Servicers harmless from and against any and all claims which it may have as a result of such reporting.

8.Reserve

8.1In addition to Tib Finance’s holdback and rolling reserve rights in the Tib Finance Agreement, if Servicers have elected to settle directly to Sub-Merchant in accordance with Section 4.3 above, Servicers may at any time, including upon termination of this Agreement, require Sub-Merchant to fund a cash reserve (“Reserve”) in an amount that reflects Servicers’ assessment of their reasonably anticipated risk relating to Sub-Merchant, as they may determine (and may increase or decrease) in their discretion from time-to-time.  For the avoidance of doubt, such risk may relate to amounts for which Sub-Merchant may be directly liable to Servicers under this Agreement (e.g., anticipated Data Compromise Losses, Card Organization fines, etc.), or amounts for which Tib Finance may be liable to Servicers that relate to Sub-Merchant.  Servicers may fund the Reserve by holding back Transaction proceeds, debiting the Settlement Account, or making a demand of payment from SubMerchant.  The Reserve is not a segregated fund that the Sub-Merchant may claim to own.  Servicers will pay to the Sub-Merchant any amounts remaining from the Reserve after all other then-current and contingent liabilities or obligations related to the Sub-Merchant’s Transactions have expired (as provided for under the Card Organization Rules).

8.2The obligations due to the Sub-Merchant from the Reserve will not accrue interest unless required by Applicable Laws.

8.3Tib Finance will notify the Sub-Merchant if a Reserve is established (including its amount) or if the amount of the Reserve is modified.

8.4Servicers may set off from the Reserve any obligations that the Sub-Merchant owes to Servicers under this Agreement, or any obligations that Tib Finance owes to Servicers that are related to Sub-Merchant.  However, Servicers will not set off from the Reserve obligations that Sub-Merchant owes to Tib Finance under the Tib Finance Agreement.

8.5Although Sub-Merchant acknowledges that the Reserve is a general obligation of Servicers, and not a specifically identifiable fund, if any person claims that the Reserve is an asset of Sub-Merchant that is held by the Bank or BAMS, Sub-Merchant grants and acknowledges that the Bank and First Data have a security interest in the Reserve and, at Servicers’ request, will provide documentation to reflect this security interest. 

9.Data Security. 

9.1No Card Information.  Sub-Merchant represents that it does not have access to Card information (such as the cardholder’s account number, expiration date, and CVV2) and will not request access to such Card information from Servicers.  In the event Sub-Merchant receives such Card information in connection with the Acquiring Services provided hereunder, Sub-Merchant shall promptly notify Servicers, and agrees not to use it for any fraudulent purpose or in violation of any Card Organization Rules, including but not limited to Payment Card Industry Data Security Standards (PCI DSS) or Applicable Law.    

9.2Third Party Service Providers.  Sub-Merchant represents that it does not and will not during the term of this Agreement without Servicers’ prior written consent, use any third party service provider other than Tib Finance in connection with the handling, storage, processing, or transmission of any Transaction data or Cardholder data relating to Transactions processed by Servicers under this Agreement.  

9.3Data Compromise Event.  If, notwithstanding the above representations, at any time Sub-Merchant has reason to believe that Card information or Transaction information in its possession or control, or in the possession or control of its agent, representative, or third party service provider, has been compromised, lost, disclosed, or stolen (a “Data Compromise Event”), Sub-Merchant will (i) notify Servicers promptly and assist in providing notification to the proper parties, (ii) not alter or destroy any related records, (iii)  maintain complete and accurate documentation regarding any modifications made to the records, and (iv) share with Servicers information related to Sub-Merchant’s or any Card Organization’s investigation related to any actual or suspected Compromised Data Event (including forensic reports and systems audits), and Servicers may share that information with Card Organizations.  Further, Sub-Merchant will indemnify Servicers for any Losses arising from a Data Compromise Event in accordance with Section 14 below.

9.4Cooperation.  If any Card Organization requires an audit of Sub-Merchant due to an actual or suspected Data Compromise Event, Sub-Merchant will cooperate with such audit.  Sub-Merchant may not use any Card information other than for the sole purpose of completing the Transaction authorized by the Cardholder for which the information was provided, or as specifically allowed by Card Organization Rules or required by Applicable Law.

10.Provision of Information; Audit.  Sub-Merchant will promptly provide to Servicers any financial or other information reasonably requested by Servicers and/or Card Organizations to (i) perform credit, risk, security, qualification, and other reviews or monitoring relating to the Servicer Services, Transactions and Transaction activity, settlement directly to Sub-Merchant, or the financial condition of Sub-Merchant, including but not limited to anti-money laundering, know-your-customer, and sanctions screens; (ii) establish a merchant ID for Sub-Merchant; (iii) ensure compliance with this Agreement, the Card Organization Rules, and Applicable Law; (iv) remediate any violation of Card Association Rules or Applicable Law or breach of this Agreement.  Sub-Merchant authorizes Servicers to obtain information from third parties when performing credit, risk, security, qualification, and other reviews.  Servicers or their designees may perform a reasonable audit of Sub-Merchant’s records related to its performance under this Agreement with seven (7) days’ advance written notice to Sub-Merchant (or 24 hours’ notice in the case of suspected fraud, unlawful or prohibited Transactions, security concerns or security breach), and at Servicers’ expense.

11.Notice of Material Change.  Sub-Merchant will provide Servicers with reasonable advance notice of any material change in the nature of Sub-Merchant’s business (including any change in control or merger, any liquidation, any transfer or sale of all or substantially all of its assets, or any change to Sub-Merchant’s operations that would materially affect the products or services sold, the procedures for payments acceptance, or the fulfillment of obligations to a Cardholder). 

12.Disclaimer of Warranties.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, SERVICERS DISCLAIM

ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO TIB FINANCE, SUBMERCHANT OR ANY OTHER PERSON, INCLUDING ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS AGREEMENT.

13.Limitation of Liability.  Sub-Merchant acknowledges that Servicers are only entering into this Agreement to assist Tib Finance in Tib Finance’s processing relationship with Sub-Merchant.  Therefore, to the extent allowed by Applicable Law: (i) if Sub-Merchant has any claim arising in connection with any of the above, Sub-Merchant’s sole and exclusive remedy shall be to proceed against Tib Finance and not against either Servicer; (ii) in no event shall either Servicer have any liability to Sub-Merchant with respect to this Agreement or the Acquiring Services, including but not limited to any claim relating to an action or failure to act by Tib Finance or Servicers’ or Tib Finance’s settlement (or failure to settle) to the Settlement Account.  To the extent the Card Organization Rules prohibit Servicers from disclaiming liability as provided in this Section, Servicers’ liability shall be limited to that explicitly required by the Card Organization Rules and only applicable where and to the extent that such Card Organizations have the authority to enforce such rules.

14.Indemnification. Sub-Merchant will indemnify and hold harmless Servicers (including their respective affiliates, directors, officers, managers, and employees) for any and all losses, damages, costs, fines, penalties, assessments, and expenses (including issuer reimbursements) (together, “Losses”) assessed against them by a third party (including Card Organizations), or awarded against them due to a third party claim, which arises from (i) Sub-Merchant’s or its third party service provider’s gross negligence, willful misconduct, or breach of this Agreement, or (ii) any Data Compromise Event.   

15.Assignment.  Each Servicer may, in whole or in part, assign or transfer this Agreement or delegate or subcontract its respective rights, duties, or obligations under this Merchant Agreement without Sub-Merchant’s or Tib Finance’s consent. Sub-Merchant further acknowledges that another financial institution may be substituted for Bank with respect to Bank’s obligations hereunder.

16.Confidentiality

16.1Confidentiality. No party will disclose non-public information about another party’s business (including the terms of this Merchant Agreement, technical specifications, customer lists, or information relating to a party’s operational, strategic, or financial matters) received or obtained by such party during the term of this Agreement (together, Confidential Information). Confidential Information does not include information that: (1) is or subsequently becomes publicly available (through no fault of the recipient); (2) the recipient lawfully possesses before its disclosure; (3) is independently developed without reliance on the discloser’s Confidential Information; or (4) is received from a third party that is not obligated to keep it confidential. Each party will implement and maintain reasonable safeguards to protect the other party’s Confidential Information. 

16.2Disclosure. The recipient may disclose another’s party’s Confidential Information: (1) to its directors, officers, personnel, and representatives (including those of its subsidiaries, affiliates, subcontractors or vendors) that need to know it in connection with the recipient’s performance under this Merchant Agreement, and are bound by confidentiality obligations materially similar to those required under this Merchant Agreement; and (2) in response to a subpoena, court order, request from a regulator, or as required under applicable laws or Card Organization Rules.  Nothing herein shall prohibit SERVICERS and their affiliates from using or disclosing aggregated, anonymized Cardholder data and Transaction data for Servicers’ and their affiliates’ reporting and internal analysis.

17.IRS Reporting Information.  Pursuant to Section 6050W of the Internal Revenue Code, merchant acquiring entities (like Bank) and third-party settlement organizations are required to file an information return reflecting all payment card transactions and third-party network transactions occurring in a calendar year.  Accordingly, Sub-Merchant will receive a form 1099-k reporting Sub-Merchant’s gross transaction amounts for each calendar year.  In addition, the Internal Revenue Code may require Servicers to undertake backup withholding if Sub-Merchant does not provide Bank with the correct name and TIN that Sub-Merchant uses when filing its income tax return that includes the transactions for Sub-Merchant’s business.

18.Choice of Law; Venue; Waiver of Jury Trial.  The parties agree that this Agreement will be governed by and construed in accordance with the laws respecting national banks and, to the extent not so covered, by the laws of the State of North Carolina without regard to conflicts of law provisions.  Each party agrees that any action or proceeding relating to this Agreement shall be brought exclusively in any court of competent jurisdiction in State of North Carolina and the United States for the Western District of North Carolina, Charlotte Division, located in Charlotte, North Carolina, and for that purpose now irrevocably and unconditionally agrees and submits to the jurisdiction of such North Carolina courts and waives any objection to the venue of such courts whether based on inconvenience of forum or other grounds.  The parties irrevocably waive any and all rights they may have to a trial by jury in any judicial proceeding relating to this Agreement.  Sub-Merchant additionally agrees to waive personal service of process and consents that service of process upon Sub-Merchant may be made by certified or registered mail, return receipt requested, at the address provided in this Agreement.

19.Notices.  All notices and other communications required or permitted hereunder (other than those involving normal operational matters relating to the Services) must be in writing and sent via mail to the addresses below.  Such notices will be deemed to have been given when received.

19.1Notice to BAMS will be sent to:  Banc of America Merchant Services, LLC, Attention: Executive Vice President Operations, 150 North College Street, Mail Code NC1-028-15-01, Charlotte, NC 28255, with a copy to Banc of America Merchant Services, LLC, Attention: General Counsel’s Office, 150 N. College Street, Mail Code NC1-028-15-01, Charlotte, NC 28255.

19.2Notice to Bank will be sent to: Bank of America, N.A.,1231 Durrett Lane, Louisville, KY 40213, Attention: Operations Manager, with a copy to Bank of America, N.A., Legal Department-Merchant Services Group, Bank of America Plaza, 101 South Tryon Street, Mail Code: NC1-002-29-01, Charlotte, NC, 282550001.

19.3Notice to Tib Finance will be sent to: 800 South Street, Suite 640, Waltham, MA 02453.

19.4Notice to Sub-Merchant will be sent to: the address on file with Tib Finance.

20.Publicity.  No party will make any press release or other public disclosure concerning the terms and conditions of this Agreement without the prior written consent of the other party.

21.Entire Agreement; Waiver.  This Agreement constitutes the entire agreement between the parties with respect to the subject matter discussed in this Agreement and supersedes any previous agreements and understandings.  Except as provided in this Agreement, this Agreement can be changed only by a written agreement signed by all parties.  A party's waiver of a breach of any term or condition of this Agreement will not be deemed a waiver of any subsequent breach of the same or another term or condition.

22.Survival.  The following Sections will survive termination of this Agreement:  7.2, 7.3, 8-10, 12-14, 16-23.

23.Card Organization Disclosure.

Member Bank Information: Bank of America, N.A.

BANK’s mailing address is 1231 Durrett Lane, Louisville, KY 40213, and its phone number is 800-430-7161.

                Important BANK Responsibilities                                           Important SUB-MERCHANT Responsibilities

(a)BANK is the only entity approved to extend acceptance of Visa and MasterCard products directly to SUBMERCHANT. (b)BANK must be a principal (signer) to this Agreement. (c)BANK is responsible for educating SUB-MERCHANT on pertinent Card Organization Rules with which SUBMERCHANT must comply; but this information may be provided to SUB-MERCHANT by BAMS. (d)BANK is responsible for and must provide settlement funds to the SUB-MERCHANT in accordance with the terms of this Agreement. (e)BANK is responsible for all funds held in reserve that are derived from settlement.

(a)Ensure compliance with Cardholder data security and storage requirements. (b)Maintain fraud and Chargebacks below Card Organization thresholds. (c)Review and understand the terms of this Agreement. (d)Comply with Card Organization Rules.

Applicable to Merchant Boarded With First Data Merchant Services LLC   Acquirer  (US only)

SUB-MERCHANT PROCESSING AGREEMENT

Tib Finance, Inc. (Payment Facilitator), First Data Merchant Services LLC (Provider), and Pathward, National Association (Bank) (Payment Facilitator, Provider and Bank collectively we, us or our) will provide the Merchant entering into the Merchant Agreement with Payment Facilitator (Sub-Merchant, you or your) with certain Card processing services. Capitalized terms used in this Agreement are referred to in Appendix 1.

By entering into this Sub-Merchant Processing Agreement (the Agreement), you agree to comply with the (1) Network Rules as they pertain to Card information you receive through the Payment Facilitator service and (2) Your Payments Acceptance Guide.

Bank and Provider are party to this Agreement for the purpose of facilitating funding of amounts owed for properly submitted transactions, less amounts owed to us under this Agreement. As such, you waive any and all claims for damages against Bank and Provider arising from or related to this Agreement. Nothing in this paragraph will limit the rights and remedies available to Bank or Provider in this Agreement.    

Acceptance of Cards

You agree to comply with Your Payments Acceptance Guide and all Network Rules, as such may be changed from time to time. You understand that we may be required to modify Your Payments Acceptance Guide and the Agreement from time to time in order to comply with requirements imposed by the Networks.  

In offering payment options to your customers, you may elect any one of the following options: (1) Accept all types of Visa and Mastercard cards, including consumer credit and debit/check cards, and commercial credit and debit/check cards;  (2) Accept only Visa and Mastercard credit cards and commercial cards (If you select this option, you must accept all consumer credit cards (but not consumer debit/check cards) and all commercial card products, including business debit/check cards); or (3) Accept only Visa and Mastercard consumer debit/check cards (If you select this option, you must accept all consumer debit/check card products (but not business debit/check cards) and refuse to accept any kind of credit cards).  The acceptance options above apply only to domestic transactions.    

If you choose to limit the types of Visa and Mastercard cards you accept, you must display appropriate signage to indicate acceptance of the limited acceptance category you have selected (that is, accept only debit/check card products or only credit and commercial products).

For recurring transactions, you must obtain a written request or similar authentication from your customer for the goods and/or services to be charged to the customer’s account, specifying the frequency of the recurring charge and the duration of time during which such charges may be made.

Settlement

Upon our receipt of the Transaction Data for Card transactions, we will process the Transaction Data to facilitate the funds transfer from the various Networks for the Card sales.  After we receive credit for such Transaction Data, subject to our other rights under this Agreement, we will provide provisional credit to your Settlement Account. 

You must not submit transactions for payment until the goods are delivered shipped, or the services are performed.  If the Cardholder disputes being charged for merchandise or services before receiving them, a Chargeback may result.  

Chargebacks

Sub-Merchant is solely responsible to pay the amount of any Chargebacks resulting from Transactions submitted by Sub-Merchant under this Agreement.  Chargebacks can be received for a number of reasons.  The following are some of the most common reasons for Chargebacks: (1) a refund is not issued to a customer upon the return or non-delivery of goods or services; (2) an authorization/approval code was required and not obtained; (3) the transaction was allegedly fraudulent; (4) the customer disputes the Card sale or the signature on the sale documentation, or claims that the sale is subject to a set-off, defense or counterclaim; or (5) The customer refuses to make payment for a Card sale because in the customer's good faith opinion, a claim or complaint has not been resolved, or has been resolved but in an unsatisfactory manner.  

Fees

Pursuant to Appendix 2, you agree to pay Payment Facilitator the fees associated with the provision of the services contemplated hereunder.    

Reserve

You acknowledge that in addition to any other rights afforded us hereunder, we may establish a reserve account to satisfy your obligations or potential obligations under this Agreement (the Reserve), which may be funded by: (i) our demand and your immediate payment for such amounts; (ii) our debiting the account identified as the Settlement Account; (iii) our withholding your settlement payments until all amounts are paid, (iv) our delaying presentation of your refunds until you make a payment to us of a sufficient amount to cover the Reserve; and (v) our pursuit of any remedies we may have at law or in equity.  

The Reserve will contain sufficient funds to cover any unbilled processing costs plus our estimated exposure based on reasonable criteria for Chargebacks, fines, returns and unshipped merchandise and/or unfulfilled services. We may (but are not required to) apply funds in the Reserve toward, and may set off any funds that would otherwise be payable to you against, the satisfaction of any amounts which are or become due from you pursuant to this Agreement. The Reserve will not bear interest, and you will have no right or interest in the funds in the Reserve; provided that upon satisfaction of all of your obligations under this Agreement, we will pay to you any funds then remaining in the Reserve.  Any funds in the Reserve may be commingled with other funds, and need not be maintained in a separate account.  Effective upon our establishment of a Reserve, you irrevocably grant to us a security interest in any and all funds, together with the proceeds thereof, that may at any time be in our possession and would otherwise be payable to you pursuant to the terms of this Agreement. You agree to execute and deliver to us such instruments and documents that we may reasonably request to perfect and confirm the security interest and right of setoff set forth in this Agreement.  The parties’ rights and obligations under this Section shall survive termination of this Agreement.

Financial Information 

Upon request, you will promptly provide us with any necessary permissions or consents, financial statements or other information reasonably requested by us to perform credit risk, security, qualification, and other reviews related to the provision of the Services, transactions submitted, fulfillment of obligations to us or Cardholders, or your financial condition. You authorize us and our processor to obtain information from third parties when performing credit risk, security, qualification, and other reviews. We, our processor or the Bank may perform a reasonable audit of the your records related to its performance under this Agreement with 30 days’ advance written notice to you, during  your normal business hours. Financial statements shall be prepared in accordance with generally accepted accounting principles. You will also provide other information concerning your business and your compliance with the terms and provisions of this Agreement as we may reasonably request. 

Data Security and Privacy 

You represent to us that you do not have access to Card information (such as the cardholder’s account number, expiration date, and CVV2) and you will not request access to such Card information from us.   In the event that you receive such Card information in connection with the acceptance or submittal of Card Transactions provided under this Agreement, you agree that you will not use it for any fraudulent purpose or in violation of any Network Rules, including but not limited to Payment Card Industry Data Security Standards (PCI DSS) or applicable law.  If at any time you believe that Card information has been compromised, you must notify us promptly and assist in providing notification to the proper parties.  You must ensure your compliance and that of any third party service provider utilized by you, with all security standards and guidelines that are applicable to you and published from time to time by Visa, Mastercard or any other Network, including, without limitation, the Visa U.S.A. Cardholder Information Security Program (CISP), the Mastercard Site Data Protection (SDP), and (where applicable), the PCI Security Standards Council, Visa, and Mastercard PA-DSS (Payment Application Data Security Standards) (collectively, the Security Guidelines).  If any Network requires an audit of you due to a data security compromise event or suspected event, you agree to cooperate with such audit.  You may not use any Card information other than for the sole purpose of completing the Transaction authorized by the customer for which the information was provided to you, or as specifically allowed by Network Rules, Your Payments Acceptance Guide or required by law.

Term; Events of Default

This Agreement shall be in effect upon signing by of each document by all parties and shall remain effective through the initial term of one year and shall thereafter automatically continue until terminated by either party upon the provision of thirty (30) days’ notice to the other party.   

If any of the following events shall occur (each an Event of Default):

(i)a material adverse change in your business, financial condition, business procedures, prospects, products or services; or

(ii)any assignment or transfer of voting control of you or your parent; or

(iii)a sale of all or a substantial portion of your assets; or

(iv)irregular Card sales by you, excessive Chargebacks, noncompliance with any applicable data security standards, as determined by us, of any Network, or any other entity, or an actual or suspected data security breach, or any other circumstances which, in our sole discretion, may increase our exposure for your Chargebacks or otherwise present a financial or security risk to us; or 

(v)any of your conditions, covenants, obligations or representations or warranties in this Agreement are breached in any material respect or are incorrect in any material respect when made or deemed to be made; or

(vi)you shall file a petition or have a petition filed by another party under the Bankruptcy Code or any other laws relating to bankruptcy, insolvency or similar arrangement for adjustment of debts; consent to or fail to contest in a timely and appropriate manner any petition filed against you in an involuntary case under such laws; apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of a substantial part of its property; or make a general assignment for the benefit of creditors; or take any corporate action for the purpose of authorizing any of the foregoing; or

(vii)a violation by you of any applicable law or Network Rule or our reasonable belief that termination of this Agreement or suspension of services is necessary to comply with any law including without limitation the rules and regulations promulgated by the Office of Foreign Assets Control of the US Department of the Treasury or your breach, as determined by Servicers, of your requirement to comply with all applicable laws.

 then, upon the occurrence of (1) an Event of Default specified in subsections (iv), (vi), (vii), or (viii) we may consider this Agreement to be terminated immediately, without notice, and all amounts payable hereunder shall be immediately due and payable in full without demand or other notice of any kind, all of which are expressly waived by you, and (2) any other Event of Default, this Agreement may be terminated by us giving not less than 10 days’ notice to you, and upon such notice all amounts payable hereunder shall be due and payable on demand.

Neither the expiration nor termination of this Agreement shall terminate the obligations and rights of the parties pursuant to provisions of this Agreement which by their terms are intended to survive or be perpetual or irrevocable. Such provisions shall survive the expiration or termination of this Agreement. All obligations by you to pay or reimburse us for any obligations associated with transactions you have submitted to us are intended to survive termination of this Agreement.

If any Event of Default shall have occurred and regardless of whether such Event of Default has been cured, we may, in our sole discretion, exercise all of our rights and remedies under applicable law, and this Agreement.

The Networks often maintain lists of merchants who have had their merchant agreements or Card acceptance rights terminated for cause. If this Agreement is terminated for cause, you acknowledge that we may be required to report your business name and the names and other information regarding its principals to the Networks for inclusion on such list(s). You expressly agree and consent to such reporting if you are terminated as a result of the occurrence of an Event of Default or for any reason specified as cause by the Networks. Furthermore, you agree to waive and hold us harmless from and against any and all claims which you may have as a result of such reporting.

In the event we provide notice to you of an increase in the fees for Services, you may terminate this Agreement without further cause or penalty by providing us 30 days advance written notice of termination.  You must terminate within 30 days after we provide notice of the fee increase.  However, maintaining your account with us or your continued use of our Services after the effective date of any increase shall be deemed acceptance of the increased fees for Services, throughout the term of this Agreement.

We may terminate this Agreement at any time and for any or no reason upon the provision of thirty (30) days prior notice.  We may also temporarily suspend or delay payments to you during our investigation of any issue and/or designate an amount of funds that we must maintain in order to protect us against the risk of, among other things, existing, potential, or anticipated Chargebacks arising under this Agreement or other amounts that may be owing to us under this Agreement. 

Warranties; Exclusion of Consequential Damages; Limitation on Liability

This Agreement and any addenda is an agreement for services and except as expressly provided in this Agreement, and any addenda, we and our affiliates disclaim all representations or warranties, express or implied, made to merchant or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise (regardless of any course of dealing, custom or usage of trade) of any services or any goods provided incidental to the Services provided under this Agreement.

Notwithstanding anything in this in this Agreement and any addenda to the contrary, in no event shall we or our affiliates be liable under any theory of tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages.

Notwithstanding anything in this Agreement and any addenda to the contrary, we  and our  affiliates’ cumulative liability, in the aggregate (inclusive of any and all claims made by Sub-Merchant against us and/or our affiliates, whether related or unrelated) for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this Agreement any addenda) and regardless of the form of action or legal theory shall not exceed the lesser of (i) $100,000; or (ii) the amount of fees received by us pursuant to any addenda attached and incorporated herein for services performed in the immediately preceding 12 months.

Confidentiality

Each party acknowledges and agrees that the other may be providing to it and that it may become aware of the confidential and proprietary information of the other party, including but not limited to, the terms of this Agreement, financial information and other information related to each party’s business operations.  Each party agrees that it will maintain the confidentiality of such information and neither party shall disclose any such information to any other person or entity (other than to those of its employees, agents, contractors, representatives and Affiliates to whom disclosure is reasonably necessary in furtherance of the performance of this Agreement).  Notwithstanding the foregoing, the requirements of non-disclosure shall not apply to any information which: (a) at the time of disclosure is already in the possession of the receiving party; (b) is independently developed by the receiving party without reliance on the disclosed confidential or proprietary information; (c) is or becomes publicly available through no wrongdoing of the receiving party or (d) becomes available to receiving party on a non-confidential basis from a person, other than the disclosing party, who is not bound by a confidentiality obligation or otherwise restricted from transmitting the information to the receiving party.  Furthermore, this section shall not prohibit the receiving party from making legally required disclosures pursuant to subpoena, court order or the order of any other authority having jurisdiction; provided that receiving party shall provide disclosing party with prompt notice, unless prohibited by law or court order, thereof so that disclosing party may seek an appropriate protective order or other remedy.  If in the absence of a protective order or other remedy or waiver of the terms of this section, if receiving party determines in its sole discretion that it is required by law, regulation, legal process or regulatory authority to disclose any such confidential or proprietary information, receiving party may disclose such information upon written notice to disclosing party unless prohibited by law or court order.  

Visa and Mastercard Disclosure

Member Bank Name: Pathward, National Association (First Data Merchant Services LLC)

Bank mailing address: 5501 S. Broadband Lane, Sioux Falls, SD 57108

          Bank Phone Number: 1-866-550-6382                              

Important Member Bank Responsibilities

(a)The Bank is the only entity approved to extend acceptance of Visa and Mastercard products directly to a merchant.

(b)The Bank must be a principal (signer) to the Sub-Merchant Agreement.

(c)The Bank is responsible for educating Sub-Merchants on pertinent Visa and Mastercard Rules with which SubMerchants must comply; but this information may be provided to you by Payment Facilitator.

(d)The Bank is responsible for and must provide settlement funds to the Payment Facilitator, for distribution to the SubMerchant.

(e)The Bank is responsible for all funds held in reserve at Bank that are derived from settlement.  

Miscellaneous

Important Sub-Merchant Responsibilities

(a)In the event Sub-Merchant obtains Card Information, ensure compliance with Cardholder data security and storage requirements.

(b)Maintain fraud and chargebacks below Network thresholds.

(c)Review and understand the terms of the Agreement.

(d)Comply with Network Rules.

(e)Retain a signed copy of this Disclosures Page.

Compliance with Laws.  Each party agrees to comply with all laws, regulations and Network Rules applicable to it and each are responsible for their own costs and compliance of such.  

Force Majeure.  No party shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused directly or indirectly by a force majeure event.  In any such event, the non-performing party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable.

Notices.All notices and other communications required or permitted hereunder (other than those involving normal operational matters relating to the Services) shall be in writing, if to Sub-Merchant, at Sub-Merchant’s business address or by any electronic means, including but not limited to the e-mail address you have provided to us, if to Payment Facilitator at 800 South Street, Suite 640, Waltham, MA 02453 and if to Bank, to the address provided above.  Notice shall be deemed to have been given, if sent by mail or courier, when received and if sent by facsimile machine, when the confirmation copy is actually received. Notice given in any other manner, including by electronic means, shall be effective when delivered.  

Indemnification.  You agree to indemnify us from and against any losses, actions, causes of action, claims, demands, costs, liabilities, expenses, damages, sanctions fines, legal fees or penalties arising from: (i) your misrepresentation or breach of warranty, covenant, or any provision under this Agreement; or (ii) a you or your employees’/agents’ fraud, gross negligence, willful misconduct or failure to comply with this Agreement and the Network Rules.

Publicity.  No party shall make any press release or other public disclosure concerning the terms and conditions of this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld).

Entire Agreement; Waiver. This Agreement constitutes the entire agreement between the parties with respect to the subject matter thereof, and supersedes any previous agreements and understandings.  Except as provided in this Agreement, this Agreement can be changed only by a written agreement signed by all parties.  A party's waiver of a breach of any term or condition of this Agreement shall not be deemed a waiver of any subsequent breach of the same or another term or condition. 

Severability. The parties intend every provision of this Agreement and any addenda to be severable. If any part of this Agreement and any addenda are not enforceable, the remaining provisions shall remain valid and enforceable.  In such case, the parties will in good faith modify or substitute a provision consistent with their original intent.  If any remedy fails of its essential purpose, then all other provisions, including the limitations on liability and exclusion of damages, will remain fully effective.

Appendix 1 Definitions

“Affiliate” is an entity that, directly or indirectly, (i) owns or controls a party to this agreement or (ii) is under common ownership or control with a party to this agreement.

“Card” is an account, or evidence of an account, authorized and established between a customer and a Network, or representatives or members of a Network that is accepted from customers.  Cards include, but are not limited to, other Card brands and debit cards, electronic gift cards, authorized account or access numbers, paper certificates, credit accounts and the like.

“Chargeback” is a Card transaction dispute (or disputed portion) that is returned to us by the Issuer. Sub-Merchant is responsible for payment to Payment Facilitator for all Chargebacks.

“Network” is any entity formed to administer and promote Cards, including without limitation Mastercard Worldwide (Mastercard), Visa U.S.A., Inc. (Visa), DFS Services LLC (Discover Network) and any applicable debit networks.

“Network Rules” are the rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Network.

“Reserve” means an account established and funded at our request or on your behalf, pursuant to the Reserve section of the Agreement.   

“Retrieval Request” is a request for information by a customer or Network relating to a claim or complaint concerning a Transaction.  

“Settlement Account” is an account or account(s) at a financial institution designated by Sub-Merchant as the account to be debited and credited by Payment Facilitator or Bank for Card transactions, fees, Chargebacks and other amounts due under the Agreement or in connection with the Agreement.

“Transaction” is a transaction conducted between a customer and Sub-Merchant utilizing a Card in which consideration is exchanged between the customer and Sub-Merchant. 

“Transaction Data” is the written or electronic record of a Transaction.

“Your Payments Acceptance Guide” mean our operating rules and regulations, attached hereto and incorporated herein by reference, as may be changed by us from time to time.

Appendix 2

Fees

See fees in Payment Facilitator Merchant Agreement

EXHIBIT 5

FURTHER TERMS APPLICABLE TO NON-US and NON-CANADA MERCHANTS

                      Acquirers are:            

European Union:

          

                     First Data Europe Limited

Janus House JH/1D

Endeavour Drive

Basildon, Essex, UK, SS14 3WF

First Data Merchant Solutions

Australia Pty Limited

Level 11 168 Walker Street

North Sydney, NSW 2060

First Data Merchant Services LLC,

Attn: Executive VP – Operations,

5565 Glenridge Connector NE, Atlanta, Georgia 30342 with a copy to: First Data Merchant Services LLC,

Attn: General Counsel’s Office,

6855 Pacific Street,

AK-32, and Omaha, NE 68106

                 I.Applicable to Merchant Boarded with First Data (Non-US and Non-Canada only)

Definitions.  For purposes of this Exhibit 5, the following words shall have the following means:

1.“Tib Finance” means Tib Finance Payment Services Ireland Limited for EU merchants having its registered office at  6^th Floor South Bank House, Barrow Street, Dublin 4, D04 TR29, Tib Finance Payment Services Ltd for UK merchants having its registered office at Medius House, 2 Sheraton Street, London W1F 8BH.

2.“Card” means all valid and current payment cards or form factors of a Card Organization used to initiate a payment Transactions and which is approved by Acquirer, notified to Merchant in writing from time to time and to which this Agreement applies.

3.“Card Not Present” means a payment Transaction where the Card or the Cardholder is not physically present at Your premises at the time of the Transaction, and includes E-Commerce Transactions and Mail/Telephone Transactions.

4.“Card Organization” means any entity formed to administer and promote Cards, such as Visa and MasterCard, or any other payment scheme or organization that governs the submission of Transactions, as agreed among the parties in writing from time to time.

5.“Card Organization Marks” means the names, logos, symbols and trademarks of the Card Organizations.

6.“Card Organization Rules” means the rules, regulations and operating instructions issued by

particular Card Organizations, as may be varied and updated from time to time.

7.“Cardholder” means an individual, company, firm or other body to whom a Card has been issued at any time and who is authorized to use that Card.

8.“Chargebacks” means a demand by an Issuer or a Card Organization to be repaid a sum of money by Acquirer in respect of a Transaction which has been previously subject to Settlement and for which Acquirer have been paid by the relevant Card Organization.

9.“Dynamic Currency Conversion” means a service to have funds equal to the value of the goods and/or services which a Cardholder wishes to acquire from Tib Finance converted from the currency of the country where Tib Finance is located to the currency of the country where a Card is issued.

10.“E-Commerce Transaction” means a non-face-to-face on-line Transaction using electronic media in which Card details are transmitted by a Cardholder to You via the internet, the extranet or any other public or private network.

11.“Interchange” means the contracts, agreements, rules, regulations and procedures governing the relationships between or among, or the actions in accordance with such contracts, agreements, rules, regulations and procedures by, any two or more entities in connection with Settlement and/or Transactions.

12.“Issuer” means an organization authorized by a Card Organization to issue Cards and whose name appears on the Card as the issuer of such Card or who enters into a contractual relationship with the Cardholder for the use of the Card.

13.“Mail/Telephone Transaction” means the processing of a Transaction arising from an order for goods and/or services made over the telephone or mail where the Card or the Cardholder is not physically present at the time of the Transaction. This often arises from mail or telephone requests for goods and/or services.

14.“Maximum Amount” means the maximum amount in annual Transaction volume of the

Merchant (including the annual Transaction volume of any related entities) which is permitted by the applicable Card Organizations (which varies and is dependent Card Organization and the applicable Territory, for example, it is currently $100,000 in the United States and $1,000,000 for MasterCard in Australia), as amended from time to time

15.“Operating Guide” means the manual prepared by Us, containing operational procedures, instructions and other directives relating to Card Transactions, as may be amended from time-to- time.

16.“Recurring Transaction” means a Transaction which the Cardholder has agreed can be debited to their Cardholder’s account at agreed intervals or on agreed dates.  The Transaction can be for a specific amount or for an amount due to Merchant for an ongoing service or provision of goods.

17.“Refund” means where you agree to make a refund to the Cardholder's Card of the whole or part of any sum authorized by a Cardholder to be debited to their Cardholder's Account.

18.“Retrieval Requests” means a request for documentation related to a Card Transaction such as a copy of a Sales Draft or other Transaction source documents.

19.“Sales Draft” means an electronic record which is created to evidence purchase of goods or services by a Cardholder from Tib Finance using a Card that is in compliance with the Card Organization Rules.

20.“Settlement” means the payment of amounts to be reimbursed by Acquirer to Merchant or by Merchant to Acquirer under this Agreement.

21.“Transaction” means any Card-Not-Present Transaction between a Cardholder and Merchant that complies with the requirements set out at Clause 8 below regarding the purchase or return of goods and/or services

where the Cardholder Uses its Card to pay for goods and/or services that results in the generation of a transaction record for the provision of goods and/or services and/or Refunds

22.“Transaction Data” means all data relating to Transactions.

In the event that First Data and, in respect of a given Territory other than the United States, its bank, and/or First Data Europe Limited in the EU, or other financial institution which provides Card Organization sponsorship in that Territory to First Data in accordance with the Card Organization Rules (“Bank”) are the acquirer of a transaction of Merchant, the following provisions are required in full and without edit. They shall apply to all non-US transactions acquired by (i) First Data Global Services Limited and/or First Data Merchant Services Corporation, and/or acquired or boarded with FDMSA (“together, First Data”) which is the sponsored acquirer for various financial institutions (hereinafter, “Acquirer”), and shall be incorporated into this Merchant Agreement and the incorporated Terms and Conditions.

1.In the event of any inconsistency between any provision of the Merchant Agreement (including this Exhibit 5) between Merchant and Tib Finance and the Card Organization Rules, the Card Organization Rules will take precedence.

2.Additional Terms.

A.The Merchant will not submit for payment, and bank nor Tib Finance will not accept from Merchant, any

Transaction that Merchant knows or ought to have known to be illegal, fraudulent, not authorized by the Cardholder, not in compliance with applicable law or Card Organization Rules or subject to any claim, setoff, counterclaim, lien or other encumbrance, or that represents the refinancing of an existing obligation of the Cardholder or otherwise violates the Merchant’s Agreement with Tib Finance, or with respect to any Transaction prohibited by Acquirer (each, a "Prohibited Transaction");

B.All Retrieval Requests, Cardholder disputes, and Chargebacks shall be handled between Tib Finance and the Merchant;

C.No Refunds, credits, exchanges, or adjustments related to the Transaction shall be submitted by the Merchant to Acquirer, instead all such issues shall be handled by Tib Finance;

D.On an ongoing basis, the Merchant must promptly provide Tib Finance with the current address of each of its offices of the contracting entity(ies) and any of its entities or subsidiaries processing transactions through Tib Finance, all “doing business as” (DBA) names used by the Merchant, and a complete description of goods sold and services provided to its customers, names and domiciles of the Merchant's principals, and any other information reasonably requested by Acquirer and/or Tib Finance from time to time;

E.The Merchant authorizes Tib Finance, Acquirer and Bank to obtain financial and credit information regarding the Merchant;

F.The Card Organizations may at any time, immediately and without advance notice, prohibit the Merchant from using any of the Card Organization Marks for any reason;

G.The Card Organizations have the right to enforce any provision of the Card Organization Rules and to prohibit the Merchant from engaging in any conduct the Card Organizations deem could injure or could create a risk of injury to the Card Organizations, including injury to reputation, or that could adversely affect the integrity of the Interchange system, the Card Organizations, Confidential Information as defined in the Card Organization Rules, or both;

H.The Merchant will not take any action that could interfere with or prevent the exercise of any rights by the Card Organizations;

I.The Merchant acknowledges and agrees that its relationship in connection with the Merchant

Agreement is with Tib Finance and not Acquirer or Bank, and that the Merchant may not seek recourse

against Acquirer or Bank, and neither Acquirer nor Bank will have any obligation or liability whatsoever to the Merchant under or in connection with the Merchant Agreement, including any damages arising out of or in connection to the Merchant Agreement;

J.That Tib Finance can provide to Acquirer and Bank, and the Merchant agrees that Acquirer and Bank may use, for the purposes of fulfilling their obligations under this Agreement or as otherwise required, any information, whether confidential or otherwise, regarding the Merchant that they may, from time to time, request within seven (7) days of making such request;

K.The Merchant shall co-operate with Tib Finance, Acquirer and Bank in respect of any issues arising out of Merchant’s breach or potential breach of security in relation to the holding of confidential data, including engaging in paying for the cost associated with the forensic investigation;

L.Acquirer and/or Bank may disclose information about the Merchant’s business to associated companies, the police, Card Organizations, regulators, or any other investigating body for use in the prevention or detection of fraud or other criminal activity, or to any credit reference agency which is used as a source of information;

M.The Merchant shall ensure that Transaction Data it submits for processing is accurate and complete and that each transaction represents a bona fide sale or purchase between it and the Cardholder not previously submitted;

N.The Merchant shall notify Tib Finance immediately if it expects to exceed or exceeds the Maximum Amount.

O.If the Maximum Amount is exceeded, to the extent requested by Acquirer, Tib Finance will cease processing, and the Merchant will cease submitting transactions to Acquirer, and/or Tib Finance and the Merchant shall enter into a merchant agreement with Acquirer on terms satisfactory to Acquirer and Bank;

P.In the aforesaid event (item (O)) (i) if Tib Finance or Merchant fail to comply with such requirements, or Acquirer and/or FDMSA determine that they cannot make such payments under applicable law, or (ii) if

Acquirer and/or FDMSA otherwise determines that any such payment by Tib Finance under the Merchant Agreement could constitute a risk, then Acquirer and/or FDMSA shall be entitled to provide direct funding to the Merchant.

Q.The Merchant acknowledges that Card-Not-Present Transactions have a substantially higher incidence of Chargebacks, and the Merchant assumes all risks associated therewith;

R.It is the responsibility of the Merchant to verify the identity of the user of the Card submitting a transaction and the Merchant assumes all associated risks (including fraud risks and Chargeback risks);

S.Any Card Organization, Acquirer and Bank and their respective regulators and auditors may  audit the Merchant's records relating to Transactions processed under Merchant Agreement. The Merchant shall provide all documentation, information or other inspection rights requested by the Card Organizations, Acquirer’s or Bank’s regulators or auditors or otherwise to enable Acquirer to comply with applicable law and the Card Organization Rules;

T.As required by the Card Organizations, the Merchant must comply with PCI and it shall enable Acquirer and Bank (as required by the Card Organizations) to carry out an audit of the Merchant's systems to ensure the Merchant's compliance; and

U.The Merchant will comply with all applicable laws, and the Merchant’s ability to process transactions shall be automatically terminated if Merchant or any of its officers, directors, principals, partners, employee, agent, contractor or subcontractor authorized to act on behalf of Merchant becomes an OFAC prescribed person or equivalent under any official screening program in the relevant territory.

3.Termination.  You acknowledge that Tib Finance may terminate the Merchant Agreement immediately if:

A.Acquirer, Bank or the Card Organizations request Tib Finance to do so;

B.Acquirer terminates the its agreement with Tib Finance for any reason or the Merchant Agreement;

C.The Card Organizations de-register Tib Finance as a payment service provider and/or a master merchant or if Acquirer or Bank cease(s) to be a member of any Card Organization for any reason or if Acquirer fails to have a valid License with any Card Organization to use any Card Organization Mark accepted by the Merchant; in such circumstances the Merchant Agreement may be automatically terminated;

D.The Merchant's activity is deemed, at Tib Finance’s discretion or at the direction of Acquirer or the Card Organizations, to be fraudulent, otherwise wrongful or in violation of the Card Organization Rules or laws,  or has the ability to bring the integrity or reputation of the Acquirer, or FDMSA, or Card Organizations into disrepute;

E.Acquirer considers the percentage, number or amount of fraudulent Transactions submitted by the Merchant or the number of Chargebacks in relation to Tib Finance’s business or the business of the Merchant, to be excessive;

F.The Merchant submits for processing, transactions on behalf of any third party entity other than that agreed between the parties hereto;

G.The Merchant materially alters its website content without Tib Finance's prior written consent or changes its business or alters its business model during the term of the Merchant Agreement or if there is a direct or indirect change of control of the Merchant or any parent company of the Merchant;

H.For any other circumstance or event required by Card Organization Rules to be included as a termination event in the Merchant Agreement; or   

I.There is a significant change, or we suspect a significant change is impending (as determined by us) in the nature, level or control of your business or financial condition; 

J.For six (6) consecutive months the Merchant fails to submit any transactions; 

K.You fail to meet your obligations under clause 2(T) or (U) above; 

L.You obstruct any efforts for the Acquirer or FDMSA to comply with  legal or regulatory obligations including with respect to Australia, under the Anti-Money Laundering and Counter Terrorism Financing Act 2006.

4.Changes to Merchant Website.   As Tib Finance is responsible to the Card Organizations and Acquirer for the Card acceptance policies and procedures of the Merchant, Tib Finance may require any changes to Merchant’s website or otherwise that Tib Finance, Acquirer deems necessary or appropriate to ensure that the Merchant remains in compliance with the Card Organization Rules governing the use of the Card Organization Marks.

5.Merchant Obligations.   At all times during the term of the Merchant Agreement the Merchant acknowledges and agrees:

A.to comply with all applicable Card Organization Rules, as amended from time to time and that all provisions required by the Card Organization Rules to be included in the Agreement between Tib Finance and Merchant (as the Rules may be updated from time to time) are so deemed incorporated by reference into the Agreement and such Rules take precedence in case of any conflict with the Agreement;

B.that the Card Organizations are the sole and exclusive owners of the Card Organization Marks;

C.not to contest the ownership of the Card Organization Marks for any reason;

D.to only submit transactions to Tib Finance that are in respect of goods and/or services provided by the Merchant to the Cardholder; and

E.that it has received and accessed the Operating Guide (as may be amended from time to time), the terms of which are incorporated into this Agreement, and the Merchant agrees to follow the procedures in the Operating Guide in connection with each Card Transaction.

F.to ensure that it prominently and unequivocally informs a Cardholder of the identity of the Merchant at all points of interaction, so that the Cardholder can readily distinguish the Merchant from any other third party, such as a supplier of products or services to the Merchant and will ensure that its website:

(i)prominently displays the name of the Merchant;

(ii)prominently identifies the name of the Merchant as displayed on the website as both the Merchant and as the name that will appear on the Cardholder statement; and

(iii)displays the Merchant name and information as prominently as any other information depicted on the website, other than the images of the products or the services being offered, in accordance with the Card Organization Rules.

6.Fair Acceptance.  Merchant shall honor all valid and current Cards presented by Cardholders in accordance with the Card Organization Rules and the Merchant shall not:

A.undertake Transactions for anything other than the genuine purchase of the goods and/or services that the Merchant supplies;

B.impose any minimum or maximum transaction values;

C.discriminate against the use of Cards in any way;

D.split a Transaction into two or more Transactions;

E.accept Transactions relating to goods and/or services which fall outside the description of the Merchant’s business without prior written approval of Tib Finance;

F.accept a Transaction or present transaction data for processing which was not undertaken directly between the Merchant and the Cardholder;

G.accept or process Transactions in order to give Cardholders cash;

H.accept any Transaction using any Card issued in Tib Finance’s or the Merchant’s name, or related to the Acquirer bank account of Tib Finance, or of a partner in, or director or other officer of Tib Finance’s business or the business of the Merchant, or of the spouse or any member of the immediate family or household of any such person;

I.submit Transaction data which Merchant knows or ought to have known is illegal or with respect to transactions that were previously subject to a Chargeback;

J.except in the situations expressly allowed for under the relevant Card Organization Rules, process a refund, price adjustment or other credit without having completed a previous Transaction with the same Cardholder on the same Card, or reimburse any refund in cash or by check, or accept money or a check from a Cardholder for the purpose of preparing the same;

K.refund Transactions to a Card which was not originally used to make such Transactions. Merchant must not, under any circumstances, accept money from a Cardholder in connection with processing a refund to the Cardholder’s Account.

7.Merchant hereby acknowledges and agrees that Acquirer may retain or withhold settlement of any sums due to Merchant as a result of the Merchant's breach of its obligations under the Merchant Agreement.

8.Authorization

A.Authorization Request. Merchant must seek, authorization at the time of, or prior to, submitting each Transaction.

B.Authorization Granted. If authorization is granted, Merchant shall (where relevant) record on the Transaction record the code number allocated to the authorization and such other information required by the Card Organizations.

C.Authorization Refused. If authorization is refused the Transaction must not proceed and the Merchant must not, seek authorization (for a Transaction on behalf of the same Cardholder) for any different amount. The Merchant shall be responsible for, and accept all Card Organizations assessed fines, fees or termination of Agreement or, for actions related to: (i) failure by Merchant to obtain an authorization code or comply with Card Organization Rules; (ii) Merchant’s submission of a Transaction after receiving a decline (even if a subsequent authorization attempt results in an authorization code); or (iii) Merchant attempts to submit multiple/partial transactions or multiple authorizations and transactions.

D.No Guarantee of Payment. AUTHORIZATION OF A TRANSACTION DOES NOT GUARANTEE PAYMENT TO MERCHANT FOR A TRANSACTION NOR IS IT A GUARANTEE THAT IT WILL

NOT BE SUBJECT TO A CHARGEBACK OR THAT MERCHANT WILL NOT BE SUBJECT TO A

DEBIT IN RELATION TO THAT TRANSACTION. SHOULD A CARDHOLDER DENY HAVING

PARTICIPATED IN A TRANSACTION, ACQUIRER MAY, AT ITS DISCRETION, WITHHOLD OR RETURN THE RELEVANT TRANSACTION/TRANSACTIONS AS UNPAID. Authorization  indicates

only the availability of credit at the time of authorization, and does not warrant that the person presenting the Card is the rightful Cardholder.

E.Disputes with the Card Organizations and Cardholders. Merchant shall at its own expense, provide Acquirer and Bank with all reasonable assistance to resolve any dispute arising under the Card Organization Rules. Acquirer and Bank shall, as against Merchant, have complete discretion to decide whether or not to resist or defend any claim made against Acquirer or Bank by any Card Organization or Cardholder, or whether to compromise  any such claim, and the decision shall be binding on Merchant. Merchant also agrees that Tib Finance, Acquirer and Bank shall each have discretion to accept, dispute, compromise or otherwise deal with any claim made against Merchant and/or Tib Finance and Acquirer arising out of a transaction accepted by Merchant for loss or liability in respect thereof on Merchant’s behalf.

F.Dispatching of Goods.

(i)Acquirer and/or FDMSA cannot provide name and address verification as part of the normal authorization

process. Where a Merchant is dispatching goods it is Merchant’s responsibility to ensure that the address to which the goods are to be dispatched is verified by Merchant

(ii)Merchant must advise the Cardholder of the time it will take to dispatch the goods and if, for any reason, it does not have the goods available for dispatch to the Cardholder within such advised time period, then the Cardholder must be notified of that fact and the order re-confirmed by the Cardholder.

9.Acceptance of Transactions

A.General. This Agreement applies to the type of Transactions authorized to be processed as part of Merchant’s Merchant Application or subsequently upon Merchant’s written request. Merchant acknowledges and agrees that, except as expressly agreed in writing by Tib Finance, Acquirer and Merchant,

the Tib Finance Services will not be provided under this Agreement in support of any card-present Transactions.

B.Currency.

(i)All Transactions accepted by Merchant and processed through the Tib Finance Services must be in the agreed currencies unless Tib Finance has given prior consent in writing that payment in other currencies may be accepted.

(ii)Unless expressly authorized, Merchant is not permitted to undertake any Transactions that utilize Dynamic Currency Conversion.

C.Card Acceptance. Merchant shall:

(i)accept all valid and current Cards presented by Cardholders which are covered by this Agreement, in each case subject to and in accordance with the Acquirer Program Standards Guide and the Card Organization Rules;

(ii)provide its full range of goods and/or services to Cardholders at prices not greater than normal cash prices or as otherwise permitted by the Card Organizations;

(iii)submit all Transactions to Tib Finance and Acquirer for authorization in accordance with this Agreement or as otherwise instructed by Tib Finance;

(iv)not accept any Transaction (and not to present for processing any Transaction Data relating to any such Transaction) under this Agreement which has been previously charged back by the Cardholder and returned to Tib Finance and/or a Merchant; and

(v)Merchant assumes all responsibility for identification of the Cardholder and the validity of the Cards used for all Transactions.

D.Disclosure. If Merchant indicates a price to a Cardholder which is not a price applicable to all methods of payment accepted by it then before the Merchant accepts the Transaction it must display a statement explaining any methods of payment to which the indicated price does not apply and the difference in price either as an amount or a percentage.

E.Transactions.

(i)Own Risk. Undertaking Transactions will be solely at Merchant’s risk and Merchant will be liable for any losses which occur as a result of undertaking or submitting such Transactions. Merchant understands that it accepts such Transactions at its own risk.

(ii)Withdrawal of Permission. Acquirer or Tib Finance, may upon giving Merchant notice, withdraw permission for Merchant to accept, submit or process certain type of Transactions where there are, in the sole opinion, of Acquirer, unacceptable levels of Cardholder disputes resulting from Transactions which Merchant has submitted and/or Transactions which Merchant has submitted and which subsequently turn out to be fraudulent.

F.Recurring Transactions. The following provisions will apply to Recurring Transactions:

(i)Own Risk. Undertaking Recurring Transactions will be solely at Merchant’s risk and Merchant will be liable for any losses that occur as a result of undertaking such transactions. Merchant understands that it accepts such Transactions at its own risk.

(ii)Cardholder Consent. In addition to seeking authorization for each Recurring Transaction, Merchant is required to obtain a prior approval from the relevant Cardholder for the goods and or services to be charged to its account periodically.

(iii)No Completion of Recurring Transactions. Merchant must not complete a Recurring Transaction after receiving: (i) cancellation from the Cardholder; (ii) notice from Acquirer or Tib Finance that Merchant may no longer process Recurring Transactions for the relevant Cards; or (iii) advice that the Card is not to be honored.

G.Future Delivery of Goods/Services. Merchant shall not to accept any Transactions representing a deposit, partial payment or payment in respect of a future delivery of goods and/or services unless this is expressly permitted under this Agreement or has otherwise been agreed by Tib Finance in writing. Merchant must ensure that the acceptance, processing and submission of any such Transaction is made in accordance with the Card Organization Rules or as otherwise instructed by Tib Finance.

H.Cash Payments by and Cash Disbursements to Cardholders. Merchant covenants that it: (i) will not submit any direct payments from Cardholders for charges of goods or services which have been included on a previous Sales Draft; (ii) will include taxes on Transactions in the amount charged and will not collect such amount in cash; and (iii) will not make any cash disbursements to a Cardholder as part of a Transaction except to the extent expressly authorized by this Agreement, the Program Standards, the Operating Guide and the Card Organization Rules.

10.General Obligation Regarding Submission of Transactions. Merchant shall only submit valid

Transactions involving a bona fide Cardholder. Merchant must not submit any Transactions that Merchant knows, or should have known, to be fraudulent or not authorized by the Cardholder. In submitting

Transactions Merchant represents and warrants (without limiting any other warranties under this Agreement) that: (i) the Transaction represents a bona fide sale/rental of merchandise or services not previously submitted; (ii) all statements and representations of fact contained in the Transaction are within Merchant’s knowledge and are true and complete; (iii) the Transaction represents an obligation of the Cardholder for the amount of the Transaction; (iv) the amount charged for the Transaction is not  subject to any dispute, setoff, or counterclaim; (v) the Transaction amount is only for the merchandise or services (including taxes, but without any surcharge) sold or rented and, except for any delayed delivery or advance deposit Transactions expressly authorized under this Agreement, the merchandise or service was actually delivered to or performed for the person entering into the Transaction simultaneously upon Merchant accepting and submitting the Transaction for processing and Settlement; (vi) the Transaction does not represent the refinancing of an existing obligation of the Cardholder (including any obligation otherwise owed to the Merchant by a Cardholder or arising from the dishonor of a personal check); (vii) Merchant has no knowledge or notice of any fact, circumstances or defense which would indicate that  the Transaction was fraudulent or not authorized by the Cardholder or which would otherwise impair the validity or enforcement of the Cardholder’s obligation arising from such Transaction or relieve the Cardholder from liability with respect thereto; (viii) the Transaction submitted was entered into by the Merchant and the Cardholder; (ix) the Transaction is not a payment for a product or service that violates any law (either super-national, national or regional) applicable to any aspect of the Transaction; (x) the Transaction was made in accordance with this Agreement, the Card Organization Rules and applicable laws; (xi) the Transaction is not for a Cardholder’s payment to an Issuer; and (xii) the Transaction does not arise from any Transactions between Merchant and Cardholder(s) who are owners, partners, guarantors, officers or employees of either thereof, respectively, other than genuine purchases, leases or rentals of goods or services or other payments, all in the ordinary course of business. Merchant is responsible for ensuring the accuracy and completeness of all Transaction Data submitted.

11.Data Security

A.Compliance. Merchant shall comply with all security procedures of which Tib Finance may notify it from time to time, before completing any Transaction.

B.Retention/Storage of Transaction Data. Merchant shall retain all Transaction Data in the strictest confidence and in a secure environment where it can only be accessed by authorized members of staff, and shall ensure that any such details stored electronically are fully protected, correct, complete, not lost or damaged and can be reconstituted, in a complete and easily readable form. Merchant will take all reasonable precautions to ensure that Cardholder Information is not disclosed to any person or entity other than Tib Finance or Acquirer or misused by any person or entity.

C.Retention of Transaction Records for Retrievals and Chargebacks.

(a)Merchant shall retain in a secure place legible copies of all Transaction records and receipts, invoices, receipts or equivalent documents relating to each Transaction. For the purpose of compliance with the Card Organization Rules in relation to Chargebacks, all the above- mentioned documents must be kept in a safe, secure and confidential manner for eighteen (18) months from the date of the relevant transaction (or, if applicable, in the case of Recurring Transactions, eighteen

(18) months from the date of the last transaction forming part of the Recurring Transaction).

(b)Merchant must not (i) retain or store any magnetic stripe or CVV2/CVC2 data after authorization for a

Transaction has been received or (ii) sell, purchase, provide or exchange Cardholder Information or Transaction data to, from or with any third party without the Cardholder’s consent, except as specifically required by applicable law, and only to the extent allowed by applicable law and the Card Organization Rules.

D.Loss or Corruption of Transaction Data.

(a)Acquirer and Tib Finance will not in any circumstances be liable in respect of the face value of any Transaction Data, or (other than if due to their own negligence or fraud) the costs of reconstituting such data, or for any other loss or damage arising on any loss or corruption of Transaction Data.

(b)If any loss or damage to the physical medium containing any Transaction Data occurs and is agreed, or shown to be due to Tib Finance’s negligence, Tib Finance will reimburse Merchant the replacement value of the lost or damaged medium

(c)If any loss or corruption of Transaction Data of whatever nature arises as a result of an act or omission by Merchant or any agent or sub-contractor engaged by Merchant, then Merchant shall be jointly and severally liable under this Clause 10(D).

E.PCI DSS.

(a)PCI compliance validation is based on where Transaction Data is retained, stored or transmitted.

Merchant hereby permits Tib Finance to provide Acquirer with all relevant information regarding the extent to which Merchant stores Transaction Data.

(b)Merchant and any agents, contractors and any third party partners engaged by Merchant, that store, process or transmit data, shall comply and maintain compliance with PCI, Visa “Account Information Security Program” and the MasterCard “Site Data Protection Program” and any other similar program as stipulated by the Card Organizations including any changes to those programs and standards which may occur from time to time. Merchant shall notify Tib Finance immediately if any data breach (including any unauthorized use or disclosure, or any loss, theft or compromise of Cardholder Information or transaction data) may occur, is suspected to have occurred or has occurred. Tib Finance is permitted to immediately notify Acquirer of any such incident.

(c)Merchant acknowledges and agrees that:

(i)it is a requirement of the Card Organizations that Merchant, its agents, contractors and any third party partners who have an obligation to comply with PCI, comply with such obligations and maintain such compliance with PCI;

(ii)any failure by Merchant, its agents, contractors and any third party partners who have an obligation to comply with PCI and who fail to comply with PCI may lead to fines being raised by the Card Organizations;

(iii)any fines which Acquirer or Tib Finance may incur as a result of Merchant’s non-compliance with this Clause 11(E) and the Card Organizations requirements for PCI shall be passed to Merchant and Merchant shall be wholly liable to pay such fines; and

(iv)Acquirer and/or Tib Finance may request details of the security systems applied by Merchant, or may

carry out an inspection or audit of Merchant's systems, including computer systems. In the event that Acquirer or Tib Finance wish to carry out an inspection, Merchant will be given advance notice specifying the date and nature of the inspection.

F.If Merchant believes that it will be unable to meet any of the requirements as set out in this Clause 11(E), Merchant will immediately notify Tib Finance as soon as reasonably practicable. If Acquirer and/or Tib Finance so elect, Acquirer will work with Tib Finance and will liaise with the Card Organizations as reasonably necessary to try to extend the deadline for Merchant to comply with PCI.

G.Confidentiality. Since the documents constituting this Agreement contain certain information designed to help reduce the risk of fraud arising on transactions, Merchant must treat such documentation as confidential and keep it secure and not disclose it other than in accordance with this Agreement.

12.Transaction Settlement.

A.Tib Finance or Acquirer may deduct the value of any Chargebacks, Refunds, adjustments, applicable

Interchange, assessments, fees, fines (including those imposed by the Card Organizations), rejected Transactions and suspended Transactions, amounts payable to third parties pursuant to instructions in accordance with the Card Organization Rules, other ad hoc charges, where such settlement funds are required to be genuinely reimbursed to Merchant in respect of transaction data that is provided to Acquirer, and any other  amounts then due from Merchant.

B.General Right to Withhold Settlement Funds. In addition to any other rights or remedies Acquirer and/or Tib Finance may have against Merchant, Acquirer and Tib Finance each reserve the right to retain or withhold settlement of any sums due to Merchant if:

(i)Merchant fail to comply with the terms of this Agreement;

(ii)in the circumstances listed in Clause 11(C) hereof; or

(iii)termination event has occurred.

C.Suspension. Tib Finance may, with or without notice, or on direction of Acquirer, change processing or payment terms and/or suspend credits or other payments of any and all funds, money and amounts now due or which subsequently become due to Merchant pursuant to this Agreement if in good faith Tib Finance suspects: (i) that any Transaction is fraudulent or involves other criminal activity; (ii) that any Transaction was not in the ordinary course of Merchant’s business; or (iii) if the number and/or size of the Transaction(s) is significantly greater than expected; or (iv) if any of termination event has occurred; or (v) if Tib Finance suspects that any such termination event has, or is likely to occur. All payments so suspended may be retained by Tib Finance and/or Acquirer until they have satisfied itself that such transaction(s) is/are legitimate and no longer liable to be the subject of a Chargeback. No interest shall accrue in respect of any such amount that is so withheld.

13.Electronic Commerce Transactions

A.Use of Website. Merchant warrants and represents that Merchant and Merchant’s agents, subcontractors and employees do not and shall not use any website in any way which might jeopardize the integrity, confidentiality, or security of the Merchants or their agents' associated equipment, any computer system, servers or network used by Merchant to communicate with Tib Finance or with Cardholders or other computer systems including through disabling devices and unsolicited e-mails.

B.Website Content. Merchant shall clearly display and maintain on its website the following information as required by the Card Organizations: (i) a complete and accurate description of all goods and/or services offered for sale; (ii) full details of their cancellation, delivery and returns policy; (iii) customer service contact details (iv) transaction currency; (v) export or legal restrictions, if known; (vi) data protection, privacy policy and security capabilities; (vii) security method for the transmission of payment data; (viii) information that the Cardholder is committing to a transaction before they select the “pay now” button, with an obvious option to cancel the payment at this point as an alternative to paying; (ix) the address of

its permanent establishment and (x) any other information required by applicable laws, regulation or Card Organization Rules.

C.Merchant will prominently and unequivocally inform the Cardholder of the identity of the Merchant at all points of interaction, so that the Cardholder can readily distinguish the Merchant from any other party, in particular, the Merchant must:

(i)display the Merchant’s name prominently;

(ii)identify prominently Merchant’s name as displayed on the website as both the Merchant and as the name that will appear on the Cardholder statement; and

(iii)display Merchant’s name information as prominently as any other information depicted on the website, other than images of the products or services being offered on sale.

D.Termination and Suspension. Acquirer may direct Tib Finance to give immediate notice of termination if Acquirer or Tib Finance consider that in their respective opinion, which shall be final, the content of any Merchant website, or any of the goods and/or services offered on such website do not meet the standards required for Acquirer and/or Tib Finance to continue to offer Merchant facilities. Acquirer and/or Tib Finance may also stop accepting transactions immediately if any goods and/or services offered may adversely affect Acquirer’s or the Card Organizations reputation(s).

E.Authentication. Where required by the Card Organization, applicable laws or a governing body in the relevant Territory, Tib Finance reserves the right to require Merchant to undertake transactions using authentication programs. If, when so requested, Merchant fails to implement the required authentication program within a timescale acceptable to Acquirer and/or Tib Finance, then Merchant’s right to process transactions may be terminated immediately.

F.Customer Service. Merchant must provide customer service through its website if a Cardholder accesses its website directly.

14.Multi-Currency Merchants

Where Merchant wishes to raise Transactions in a currency other than currency of the applicable Territory or if Tib Finance submits any such Transactions without Acquirer’s written agreement, the following Special Terms and Conditions apply.

A.Tib Finance and/or Merchant may only undertake Transactions in currencies specified in Acquirer’s Multicurrency Page if all such Transactions are presented to Acquirer utilising software approved by Acquirer.

B.Tib Finance and/or Merchant are only permitted to undertake Transactions in one of the currencies on the Multicurrency Page or such other currencies as agreed by the parties from time to time.

C.Merchant confirms that it will pay any transmission charges required by Acquirer to credit or debit funds to currency accounts domiciled outside of the applicable Territory.

15.Reserve

A.In addition to Tib Finance’s holdback and rolling reserve rights in the Agreement, the Acquirer may require the Merchant to fund a cash reserve (Reserve) in an amount determined by the Acquirer to  reflect the Acquirer’ assessment of risk, as they may determine in their discretion from time-to-time. The Reserve is established by holding back Transaction proceeds or debiting the settlement account in order to potentially offset any obligations that the Merchant may have to the Acquirer. The Reserve is not a segregated fund that the Merchant may claim to own. The Acquirer is obligated to pay to the Merchant any amounts remaining from the Reserve after all other then-current and contingent liabilities or obligations related to the Company’s payment transactions have expired (as provided for under the Card Organization  Rules).

B.The obligation of the Acquirer to settle Card Transactions will be fully discharged upon the crediting of the Transaction proceeds to the Reserve.

C.The obligations due to the Merchant from the Reserve will not accrue interest unless required by applicable laws.

D.The Acquirer will notify the Merchant if a Reserve is established (including its amount) or if the amount of the Reserve is modified.

E.The Acquirer may set off any obligations that the Merchant owes to the Acquirers from the Reserve.

F.Although the Merchant acknowledges that the Reserve is a general obligation of the Acquirer, and not a specifically identifiable fund, if any person claims that the Reserve is an asset of the Merchant that is held by the Acquirer, the Merchant grants and acknowledges that the Acquirer have a security interest in the Reserve and, at Acquirer request, will provide documentation to reflect this security interest.

16.Set-off

All funds that the Acquirer owes to the Merchant under this Agreement are subject to the Merchant’s payment obligations under this Agreement. The Acquirer may set off amounts the Merchant owes to either or both of the Acquirer against any funds that either or both of the Acquirer owe to the Merchant.

17.Reporting.

If this Agreement is terminated for cause, Merchant acknowledge that Bank or Acquirer may be required to report your business name and the names and other identification of your principals to the Card Associations. Merchant expressly agree and consent to such reporting in the event Merchant is terminated as a result of the Acquirers or Tib Finance’s  termination for cause or for any reason specified by the Card Association(s) as cause.  Furthermore, Merchant agrees to waive and hold us harmless from and against, any and all claims which you may have as a result of such reporting.

The following terms and conditions shall apply to Australia-based Merchants only:

18.Visa and MasterCard Disclosures and Acknowledgement

Member Name: First Data Merchant Solutions Australia Pty Ltd (FDMSA)

Mailing address: Level 11, 168 Walker Street North Sydney NSW 2060 Attn:  Compliance Team

E-Mail Address: [email protected]

Tib Finance Entity for Australia;  Tib Finance Australia Pty Limited

 Important Member Responsibilities                                       Important Merchant Responsibilities

• • • •

FDMSA is the only entity approved to extend acceptance of VISA and MasterCard products directly to a merchant. FDMSA must under certain conditions be a principal (signer) to the Merchant Agreement. FDMSA is responsible for educating Merchants on pertinent VISA and MasterCard Rules with which Merchants must comply; but this information may be provided to you by Tib Finance. FDMSA is responsible for and must provide settlement funds to the Merchant. FDMSA may use Tib Finance, for distribution  of settlement funds to the Merchant.

• • •• •

In the event Merchant obtains card information, ensure compliance with cardholder information security and storage requirements. Review and understand the terms of the  Agreement. Comply with Card Association Rules. Retain a signed copy of this Disclosures Page.

“Territory” means Australia

19.Notices. For purposed of this Territory, notices to Acquirer will be sent to:  

First Data Merchant Services LLC, 

Attn: Executive Vice President – Operations, 

5565 Glenridge Connector NE, Atlanta, Georgia 30342]; 

with a copy to: 

First Data Merchant Services LLC,

Attn: General Counsel’s Office, 

6855 Pacific Street, AK-32, and Omaha, NE 68106

Emailed notices to First Data will be sent to: [email protected]

EXHIBIT 6FURTHER TERMS APPLICABLE TO CANADIAN MERCHANTS

Acquirers are:

                      Peoples Trust Company                                                                   

                      1400-888 Dunsmuir Street                                                              

                      Vancouver BC, V6C 3K4 Canada                                                  

                      1-844-304-2083                                                                                 

[email protected]

Wells Fargo Bank, NA, Canadian Branch

1200 Montego Way, Walnut Creek, CA 94598

515-557-1397; 

and 

First Data Canada Ltd., 

Attention: President, 2630 Skymark Ave., 

Suite 400, Mississauga, Ontario, L4W 5A4

I.Key Terms For Canadian Merchants

Date of Contract	See Effective Date in first paragraph of Merchant Agreement Length of term: This Agreement is continuous. For any reason or no reason this Agreement may be terminated by either party with 60 days written notice.
Acquirer	Peoples Trust Company, 1400-888 Dunsmuir Street, Vancouver BC, V6C 3K4, phone: 1- 844-304- 2083; [email protected] Peoples Trust Company is a sponsoring bank of Tib Finance Enterprise Canada ULC into the payment card networks Wells Fargo Bank, NA, Canadian Branch, 1200 Montego Way, Walnut Creek, CA 94598 515-557-1397 Wells Fargo Bank is a sponsoring bank of Tib Finance Enterprise Canada ULC into the payment card networks; and First Data Canada Ltd First Data Canada Ltd., 2630 Skymark Avenue, Suite 500, Mississauga, Ontario, L4W 5A4, 1888-263-1938www.firstdata.com/en_ca/home. First Data Canada Ltd. is a registered ISO/MSP of Wells Fargo Bank, N.A., Canadian Branch, Toronto, ON, Canada
Cancellation Terms For Contracts And Any Applicable Penalties	Merchant’s right to cancel Despite what the contract states on the merchant’s right to cancel, the merchant may cancel the contract without penalty in the event of: •A fee increase, except one made in accordance with a pre-determined fee schedule in the contract; •The introduction of a new fee; or •A reduction in applicable interchange rates that is not fully passed on to the merchant. To do so, the merchant must exercise this right within 90 days of the date of receiving notice of: •the fee increase; •the introduction of a new fee; or •the reduction on the applicable interchange fees. •by sending notice to the acquirer to this effect to the person responsible for such matters under the contract for such matters. Termination for convenience The Merchant may terminate the Agreement by providing sixty (60) days prior written notice. Terminationforcausewithimmediateeffect The Merchant may terminate the Agreement with immediate effect if: •Tib Finance materially breaches the Agreement and, if such breach can be remedied, Tib Finance fails to remedy the breach within thirty (30) days after having been given notice of such breach by the Merchant; •Tib Finance is declared bankrupt or is granted a suspension of  payment •Tib Finance suspends or ceases its business. Contract renewal The Agreement is continuous unless the Merchant terminates the Agreement by providing sixty (60) days prior written notice.

 

Complaint handling procedures	This information can be found at Sections 14.9 and 14.10 of the Agreement. Merchant can submit an issue to Tib Finance using the complaint formor by writing to:  Tib Finance, 2200 HSBC Building 885 West Georgia Street Vancouver, British Columbia, V6C 3E8, Canada Any complaints concerning the Acquirer can be made at the contact information above. If satisfactory resolution is not obtained please contact your Acquirer
Information about payment terminal	N/A
Contactless payments acceptance	N/A
Statements	Merchant may retrieve statements at any time by logging in to the Tib Finance Merchant Console or Mobile Application.
Transaction refund/ return policy	See Section 4.3 above of Merchant Terms and Conditions: Disclosure of Refund Policies
Payment Facilitator or Independent sales organization or referral agent (where applicable)	Tib Finance Enterprise Canada ULC having a registered office address at 2200 HSBC Building, 885 West Georgia Street, Vancouver, BC V6C 3E8, Canada. Tib Finance is a registered Payment facilitator of Peoples Trust Company and Wells Fargo Canada. Web site: www.Tib Finance.com
Information about credit and debit card service providers (if different from the acquirer)	Tib Finance Enterprise Canada ULC having a registered office address at 2200 HSBC Building, 885 West Georgia Street, Vancouver, BC V6C 3E8, Canada. Tib Finance is a third party registered payment facilitator of Acquirer and is not an affiliate or subsidiary of Acquirer.
Code of Conduct	Please visit the Financial Consumer Agency of Canada’s website for more information on  merchant rightsundertheCodeofConductfortheCreditand Debit Card IndustryinCanada. The Code of Conduct can be found at the following link: http://www.fcac-acfc.gc.ca/Eng/forIndustry/publications/lawsReg/Pages/CodeofCo- Codedeco.aspx If you have a concern pertaining to the Code of Conduct for the Credit and Debit Card Industry, you may contact us. To assist us in reviewing your complaint, please provide the following, where applicable: •a summary of your concerns, •details, such as the name of the person you were dealing with, the date the concern occurred, date spoken to our representative, •copies of any supporting documentation (i.e. agreements, statements, correspondence) Tib Finance will provide a resolution within 30 days of receiving the merchant concern, along with: •A summary of the concern; •The final result of the investigation; •Explanation of the proposed resolution; and •Information on how to further escalate the dispute in the event of an unsatisfactory outcome, along with the appropriate form(s). If Tib Finance cannot provide a resolution within 30 days, you will be informed of the delay, reason for the delay, and the expected response time. If you believe or suspect that our actions or conduct is in breach of the Code or feel your concerns regarding our products or services have not been adequately addressed, you may report the issue directly to your acquirer of record to file a Code of Conduct Complaint.For Peoples Trust Company Website: www.peoplescardservices.comto file a Code of Conduct Concern Telephone: 1-844-304-2083 For Wells Fargo Bank Website: www.wellsfargo.comto file a Code of Conduct Concern Telephone: 1-515-557-1397 For First Data   Website:www.firstdata.com/en_ca/home.html https://www.firstdata.com/en_ca/code-of-conduct/code-of-contact-complaint-form.html to file a Code of Conduct Concern Telephone: 1-888-263-193

Account Statements	Merchant will receive periodic payout statements and shall have access to electronic statements of account online at its account on Tib Finance console.
Fees/Rates	Fees and rates are listed in Merchant’s Tib Finance console and as set out in Schedule1, Pricing and Fees Schedule to your Merchant Agreement executed as a separate document. Fees breakdown disclosure shall be available to Merchant by separate document.

NOTE: The above terms supersede any directly conflicting terms in this Agreement.

II.            In the event a Canadian bank is the Acquirer of a transaction, the following provisions are required in full and without edit and shall apply to all transactions processed by that Acquirer and shall be incorporated into the Merchant Agreement:

Merchant’s Refund policy shall be in compliance with all relevant Canadian law.

By using American Express (“AMEX”) through Tib Finance, Merchant accepts and agrees to the set out on the URL entitled “Tib Finance American Express Terms v1.0 July 2015” on the Tib Finance website including all Canadaspecific provisions therein, and as may from time to time be updated together with all relevant rules and regulations issued by AMEX.

Merchant warrants it will comply with national and provincial anti-spam laws, Canada’s Anti Spam Law 2014 and also the CANSPAM (the Controlling the Assault of Non-Solicited Pornography and Marketing) Act and equivalent foreign legislation. Merchant shall comply with and have the rights under the Code of Conduct for the Credit and Debit Card Industry in Canada under each Card Association adopting the Code. The Code can be found at http://www.fcac-acfc.gc.ca.Merchant shall also comply with Tib Finance’s privacy policy as set forth in the Tib Finance website, as may be amended from time to time.

In the event of a change in fees (other than an increase in chargeback fees due to entrance into Tib Finance’s Excessive

Chargeback Management Program) or the introduction of a new fee, Merchant shall be given 90 days prior notice by Tib Finance by notification on Tib Finance’s website, the Merchant’s account console or email, and Merchant may accept the change or terminate the contract without penalty within the notice period.

With respect to any End-User Customer Information received, accessible, or accessed by Merchant, Merchant will comply with applicable law regarding the use of non-public personal information including The Personal Information Protection and Electronic Documents Act (PIPEDA) and relevant Canadian provincial legislation.

Merchant must comply with all applicable laws and regulations including, but not limited to, relating to export control laws and economic sanctions, including the Office of the Superintendent of Financial Institutions sanctions lists.

Merchant warrants and agrees that it shall at its own cost complete and maintain all necessary tax registration requirements in any territory for which it is required to charge, collect, pay over or remit any Canadian GST, HST, and/or PST tax.

Merchant agrees that Tib Finance and not the acquirer or processor will be responsible for settlement to the Merchant.

Merchant may accept credit cards from a payment network without requirement to accept debit cards from same network. Merchant may accept debit cards from a payment network without requirement to accept credit cards from same network.

Merchant may offer discounts for different payment methods and different networks. Merchant will have any such discount clearly marked at point of sale.

Merchant must not knowingly submit, and an Acquirer must not knowingly accept from a Merchant for submission into the payment system, any Transaction that is illegal or that the Merchant should have known was illegal, including, but not limited to:

oPornography oMoney Laundering

oFinancing terrorist activities

Merchant must not deposit a Transaction receipt that does not result from an act between the Cardholder and the Merchant.

A Merchant must not require a Cardholder to complete a postcard or similar device that includes the Cardholder’s Account Number, Card expiration date, signature, or any other Card account data in plain view when mailed. Merchant must not request or use an Account Number for any purpose other than as payment for its goods or services

Merchant must not disburse funds in the form of travelers cheques, if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from the Merchant.

Merchant must not disburse funds in the form of cash, unless:

The 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 Merchant., or the Merchant is participating in the Cash Back service

Merchant must not enter into interchange any Transaction Receipt for a Transaction that was previously charged back to the Acquirer and subsequently returned to the Merchant, irrespective of Cardholder approval. The merchant may pursue payment from the customer outside the system.

Merchant must not accept a Visa Consumer Credit Card or Commercial Visa Product, issues by a U.S. Issuer, to collect or refinance an existing debt.

Merchant must not accept a Card to collect or refinance an existing debit that has been deemed uncollectable by the Merchant providing the associated goods or services.

A Merchant must not enter into interchange a transaction that represents collection of a dishonored check.

Merchant must not add any tax to Transactions, unless applicable law expressly requires that a Merchant be permitted to impose a tax. Any tax amount, if allowed, must be included in the Transaction amount and not collected separately.

Merchant must not request or use an Account Number for any purpose other than as payment for its goods or services

Merchant must not disburse funds in the form of travelers cheques, if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from the Merchant.

Merchant must not disburse funds in the form of cash, unless:

The 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 Merchant., or the Merchant is participating in the Cash Back service

Merchant must not enter into interchange any Transaction Receipt for a Transaction that was previously charged back to the Acquirer and subsequently returned to the Merchant, irrespective of Cardholder approval. The merchant may pursue payment from the customer outside the system.

Merchant must not accept a Visa Consumer Credit Card or Commercial Visa Product, issues by a U.S. Issuer, to collect or refinance an existing debt.

Merchant must not accept a Card to collect or refinance an existing debit that has been deemed uncollectable by the Merchant providing the associated goods or services.

A Merchant must not enter into interchange a transaction that represents collection of a dishonored check.

                   III.          Applicable To Merchants Boarded With Vantiv As Acquirer (Canada only)

This MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS (“Agreement”) is made among VANTIV,

LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249- 1384 and its designated Acquirer Member Bank (collectively “Acquirer”) and Tib Finance Merchant (“Sub- merchant”) in connection with the agreement between Sub-merchant and Tib Finance, Inc. (“Provider”).

Acquirer will provide Sub-merchant with certain payment processing services (“Services”) in accordance with the terms of this Agreement.  In consideration of Sub-merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with MasterCard International Inc. ("MasterCard"), VISA International ("VISA"), and certain similar entities (collectively, “Associations), Sub-merchant is required to comply with the

Operating Regulations (defined below) as they pertain to applicable credit and debit card payments.  In addition, if

Sub-merchant meets certain requirements under the Operating Regulations or an Association or the Operating Regulations otherwise require, Sub- merchant may be required to enter into a direct relationship with an entity that is a member of the Associations.  By executing this Agreement, Sub-merchant has fulfilled such requirement. However, Acquirer understands that Sub-merchant may have contracted with Provider to obtain certain processing services and that Provider may have agreed to be responsible to Sub-merchant for all or part of Sub- merchant’s obligations contained herein.

NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:

1.Certain Sub-merchant Responsibilities.  Sub-merchant agrees to comply, and to cause third parties acting as Sub-merchant’s agent (“Agents”) to comply, with the Association’s and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site

Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively "Operating Regulations"). Sub-merchant may review the VISA and MasterCard websites for a copy of the Visa and MasterCard regulations.  The websites are:

https://www.visa.ca and https://www.mastercard.com/ca/merchant/en/index.html.Sub-merchant agrees that; (i) MasterCard and VISA are the sole and exclusive owners of their respective trademarks and may prohibit the sub-merchant from using those trademarks for any reason,

(ii)Sub-merchant will not contest ownership of MasterCard and VISA trademarks for any reason and

(iii)Sub-merchant will not take actions that could interfere with or prevent MasterCard’s and VISA’s exercise of their respective rights in their trademarks. Sub-merchant also agrees that MasterCard and VISA have the right to enforce any provision of the respective card brand standards and prohibit the

 Sub-merchant or Provider from engaging in conduct that MasterCard and VISA deem could injure or create risk of injury to their respective brands.

Sub-merchant also agrees to comply with all applicable territorial, provincial, federal, and local laws, rules, and regulations and applicable voluntary codes of conduct (“Laws”). For purposes of this section, Agents include, but are not limited to, Sub-merchant’s software providers and/or equipment providers.

If appropriately indicated in Sub-merchant’s agreement with Provider, Sub-merchant may be a limited- acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and MasterCard card types (i.e., consumer credit, consumer debit, and commercial cards) and must display appropriate signage to indicate the same.  Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.

Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sales  made by Submerchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities.

2.Sub-merchant Prohibitions. Sub-merchant must not i) require a cardholder to complete a postcard or similar device that includes the cardholder’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 a Submerchant impose a tax (any tax amount, if allowed, must be included in the transaction amount and not collected separately), iii) request or use an account number for any purpose other than as payment for its goods or services, iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub-merchant,

v) disburse funds in the form of cash unless Sub-merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Submerchant), or Sub-merchant is participating in a cash back service, vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Sub-merchant, irrespective of cardholder approval, vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt, viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable, ix) add any surcharges to transactions, unless applicable laws or regulations expressly require that a Merchant be permitted to impose a surcharge, any surcharge amount, if allowed, must be included in the transaction amount and not collected separately, or x) submit a transaction that represents collection of a dishonored check. Sub- merchant further agrees that, under no circumstance, will Sub-merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Sub-merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.

3.Settlement. Upon receipt of Sub-merchant’s sales data for card transactions, Acquirer will process Sub- merchant’s sales data to facilitate the funds transfer between the various Associations and Sub-merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Sub-merchant through Provider to an account designated by Provider (“Provider Designated Account”) for such card transactions. Sub-merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer of its settlement obligation to Sub-merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub-merchant. Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit Sub-merchant’s designated demand deposit account (“Sub-merchant-Owned Designated Account”) upon receipt of such account information from Sub- merchant or Provider, or if Acquirer deposits settlement funds into the Sub-merchantOwned Designated Account.  Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason,  or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub-merchant or Provider.

4.Term and Termination. This Agreement shall be binding upon Sub-merchant upon Sub-merchant’s execution. The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number, and shall be coterminous with Provider’s agreement with Sub-merchant.

Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this

Agreement without notice if (i) Sub-merchant or Provider fails to pay any amount to Acquirer when due, (ii) in

Acquirer's opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating

Regulations or any Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the

Operating Regulations or the Laws, (iv) Acquire determines Sub-merchant poses a financial or regulatory risk to

Acquirer or an Association, (v) Acquirer’s agreement with Provider terminates, (vi) any Association deregisters Provider, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by any of the Associations.

5.Limits of Liability.  Sub-merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach.

EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS

ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED

WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR

PURPOSE.   Sub-merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement.   In no event shall Acquirer have any liability to Sub-merchant with respect to this Agreement or the Services. Sub-merchant acknowledges Acquirer is only providing this Agreement to assist in Provider’s processing relationship with Sub-merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Provider. If Provider is unable to provide its services to Sub-merchant in connection with this Agreement and Acquirer elects to provide those services directly, Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then current Bank Card Merchant Agreement, which would be provided to Sub-merchant, will govern Acquirer’s relationship with Sub-merchant.  If Provider subsequently provides its services to Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Provider and this Agreement will govern Acquirer’s relationship with Submerchant.

Miscellaneous. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of Ontario and the laws of Canada applicable therein without regard to conflicts of law provisions. This Agreement may not be assigned by Sub-merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. Acquirer may amend this Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement “Member Bank” as used in this Agreement shall mean a member of VISA, MasterCard and/or other acceptance networks, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank shall be Peoples Trust Company, located in Vancouver, British Columbia. The Member Bank is a party to this Agreement.  The Member Bank may be changed, and its rights and obligations assigned to another party by Acquirer at any time without notice to Sub-merchant. Any complaints with respect to Vantiv, LLC may be directed to Vantiv, LLC, Attn. Legal Department, 8500 Governors Hill Drive, Symmes Township, OH 45249. Any complaints with respect to Member Bank may be directed to Peoples Trust Company at 888 Dunsmuir Street, Vancouver, BC V6C 3K4. Pursuant to the Canadian Bank Act, any complaints not specifically related to this Agreement may be directed to the Financial Consumer Agency of Canada (“FCAC”) at 1-866-461-3222 (English), 1-866-461-2232 (French), fax 1-866-814-2224, or by mail to 6th Floor, Enterprise Building, 427 Laurier Ave, Ottawa, ON K1R 1B9 or through its website at www.fcac-acfc.gc.ca.The parties hereby acknowledge that they have required these agreements and all related documents to be drawn up in the English language.

Les parties reconnaissent avoir demandé que le present contrat ainsi que les documents qui s’y rattachent soient rédigés en langue anglaise.

IV. Applicable To Merchants Boarded With Peoples Trust Company As Acquirer (Canada only)

This MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS (the “Agreement”) is made

among the applicable Tib Finance entity per the Merchant Agreement, having its registered office at the address set forth in the Merchant Agreement (the “Provider”) and its designated Acquirer Member Bank, Peoples Trust Company (the “Acquirer”) and Merchant having its registered office at the address set forth in the Merchant Agreement (the “Sub-merchant”) in connection with the agreement between the Sub- merchant and the Provider. Acquirer will provide Sub-merchant with certain payment processing services (the “Services”) in accordance with the terms of this Agreement. In consideration of the Sub-merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with MasterCard (“MasterCard”), VISA (“VISA”) and certain similar entities (jointly referred to as the “Card Organizations” and each an “Card Organization”), Sub-merchant is required to comply with the Rules (as defined below) as they pertain to applicable credit and debit card payments. In addition, if Sub-merchant meets certain requirements under the Rules or a Card Organization or the Rules otherwise require, Sub- merchant may be required to enter into a direct relationship with an entity that is a member of the Card Organizations. By executing this Agreement, the Sub-merchant has fulfilled such requirement. However, the Acquirer agrees and acknowledges that the Sub-merchant has contracted with the Provider to obtain certain processing services and that the Provider has agreed to be responsible to the Sub-merchant for all or part of the Sub-merchant’s obligations contained herein.

NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:

1.Certain Sub-merchant Responsibilities. The Sub-merchant agrees to comply, and to cause third parties acting as the Sub-merchant’s agents (the “Agents”) to comply, with the Card Organization’s and other payment network’s by-laws, Rules and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Card Organizations or payment networks (jointly referred to as the “Rules”). The Sub-merchant also agrees to comply with all applicable state, federal and local laws, rules and regulations (the “Laws”). Without limiting the foregoing, the Sub-merchant agrees that it will fully comply with any and all Canadian anti-money laundering laws and regulations. For purposes of this section, the Agents include, but are not limited to, Submerchant’s software providers and/or equipment providers.

If appropriately indicated in the Sub-merchant’s agreement with the Provider, the Sub-merchant may be a limited-acceptance merchant, which means that the Sub-merchant has elected to accept only certain Visa and MasterCard card types (i.e. consumer credit, consumer debit and commercial cards) and must display appropriate signage to indicate the same. The Acquirer has no obligation other than those expressly provided under the Rules and applicable law as they may relate to limited acceptance. The Sub-merchant, and not the Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.

 The Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sales made by the Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than the Sub-merchant, or for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities.

The Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: (i) the minimum transaction amount does not differentiate between card issuers and (ii) the minimum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand. The Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, provided that the maximum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand.

2.Sub-merchant Prohibitions. Sub-merchant must not (i) require a cardholder to complete a postcard or similar device that includes the cardholder’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 the Sub-merchant impose a tax (any tax amount, if allowed, must be included in the transaction amount and not collected separately), (iii) request or use an account number for any purpose other than as payment for its goods or services, (iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub-merchant,

(v) disburse funds in the form of cash unless Sub-merchant is participating in a cash back service, (vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Sub-merchant, irrespective of cardholder approval, (vii) accept a Visa consumer credit card or commercial Visa product issued by an issuer to collect or refinance an existing debt, (viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable, or (ix) submit a transaction that represents collection of a dishonored check. The Sub-merchant further agrees that, under no circumstance, will the Sub-merchant store cardholder data in violation of the Laws or the Rules including but not limited to the storage of track-2 data. Neither the Sub-merchant nor its Agents shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.

3.Settlement. Upon receipt of the Sub-merchant’s sales data for card transactions, the Acquirer will process the Sub-merchant’s sales data to facilitate the funds transfer between the various Card Organizations and the Submerchant. After the Acquirer receives credit for such sales data, subject to the terms set forth herein, the Acquirer will fund the Sub-merchant, either directly to the Sub-merchant-Owned Designated Account (as defined below) or through Provider to an account designated by Provider (“ Provider Designated Account”), at Acquirer’s discretion, for such card transactions. The Sub-merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer of its settlement obligation to the Sub-merchant and that any dispute regarding the receipt or amount of settlement shall be between the Provider and the Sub-merchant. The Acquirer will debit the Provider Designated Account for funds the owed to Acquirer as a result of the Services provided hereunder, provided that the Acquirer may also debit the Sub-merchant’s designated demand deposit account (the “Sub-merchant-Owned Designated Account”) upon receipt of such account information from the Sub-merchant or the Provider, or if the Acquirer deposits settlement funds into the Sub-merchant-Owned Designated Account. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if the Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from either the Sub-merchant or the Provider.

4.Term and Termination. This Agreement shall be binding upon the Sub-merchant upon the Sub- merchant’s execution. The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon the Acquirer, on the date the Acquirer accepts this Agreement by issuing a merchant identification number (MID), and shall be coterminous with the Provider’s agreement with Sub-merchant.

Notwithstanding the foregoing, the Acquirer may immediately cease providing Services and/or terminate this

Agreement without notice if (i) the Sub-merchant or the Provider fails to pay any amount to Acquirer  when due, (ii) in the Acquirer's opinion provision of a service to the Sub-merchant or the Provider may be a violation of the Rules or any Laws, (iii) the Acquirer believes that the Sub-merchant has violated or is likely to violate the Rules or the Laws, (iv) the Acquirer determines the Sub-merchant poses a financial or regulatory risk to the Acquirer or a Card Organization, (v) the Acquirer’s agreement with the Provider terminates, (vi) any Card Organization deregisters the Provider, (vii) the Acquirer ceases to be a member of the Card Organizations or fails to have the required licenses or (viii) the Acquirer is required to do so by any of the Card Organizations.

5.Limits of Liability. The Sub-merchant agrees to provide the Acquirer, via communication with the Provider, with a written notice of any alleged breach by the Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by the Sub-merchant and a waiver of any and all rights to dispute such breach.

EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

The Sub-merchant’s sole and exclusive remedy for any and all claims against the Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. In the event that the Sub-merchant has any claim arising in connection with the Services, rights, and/or obligations defined in this Agreement, Sub-merchant shall proceed against the Provider and not against the Acquirer, unless otherwise specifically set forth in the Rules. In no event shall the Acquirer have any liability to the Sub-merchant with respect to this Agreement or the Services. The Sub-merchant acknowledges that (i) the Acquirer is only providing this Agreement to assist in Provider’s processing relationship with the Sub-merchant, (ii) the Acquirer is not liable for any action or failure to act by the Provider and (iii) the Acquirer shall have no liability whatsoever in connection with any products or services provided to the Sub-merchant by the Provider. If the Provider is unable to provide its services to the Sub-merchant in connection with this Agreement and the Acquirer elects to provide those services directly, the Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then current merchant agreement, which would be provided to the Sub- merchant, will govern the Acquirer’s relationship with the Sub-merchant. If the Provider subsequently provides its services to the Sub-merchant in connection with this Agreement, the Acquirer will cease to provide such services after receipt of notice from the Provider and this Agreement will govern the Acquirer’s relationship with the Sub-merchant.

6.Miscellaneous. This Agreement and/or any non-contractual obligations arising from or in connection with it are subject to the laws of the Netherlands, without regard to conflicts of law provisions, and any dispute arising thereof that cannot be solved amicably shall be settled before the competent court of Amsterdam, The Netherlands. This Agreement may not be assigned by the Sub-merchant without the prior written consent of the Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, the Acquirer and the Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. The Acquirer may amend this Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement. “Acquirer” as used in this Agreement shall mean a member of VISA and/or MasterCard, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, the Acquirer shall be Peoples Trust Company organised under the laws of Canada, having a registered office at 1400-888 Dunsmuir Street, Vancouver, BC V6C 3K4, Canada.. The Acquirer is a party to this Agreement. The acquirer may be changed, and its rights and obligations assigned to another party by the Acquirer at any time without notice to Submerchant.

 

V.       Applicable To Merchants Boarded With Wells Fargo Bank, N.A. As Acquirer (Canada only)

 

WELLS FARGO BANK N.A. CANADIAN BRANCH AND FIRST DATA CANADA

Visa and MasterCard Disclosures and Acknowledgement

Member Bank Name: Wells Fargo Bank, N.A. Canadian Branch 

Bank mailing address: 1200 Montego Way, Walnut Creek, California 94598 Bank Phone Number:  515-557-1397

         Important Member Bank Responsibilities                                          Important Merchant Responsibilities

• • • • •

The Bank is the only entity approved to extend acceptance of VISA and MasterCard products directly to a merchant. The Bank must be a principal (signer) to the Merchant Agreement. The Bank is responsible for educating Merchants on pertinent VISA and MasterCard Rules with which Merchants must comply; but this information may be provided to you by Tib Finance or Processor. The Bank is responsible for and must provide settlement funds to the Tib Finance or Processor, for distribution to the Merchant or directly to the Merchant. The Bank is responsible for all funds held in reserve that are derived from settlement.

•• • • • •

In the event Merchant obtains card  information, ensure compliance with cardholder information security and storage requirements. Review and understand the terms of the  Agreement. Comply with Card Association Rules. Retain a signed copy of this Disclosures Page.

Background, Roles and Responsibilities

1.Background.  Merchant and Tib Finance entered into a Tib Finance Merchant Agreement (including the Tib Finance Merchant Terms and Conditions) (Agreement) that allows Tib Finance to act as a payment facilitator for authorization, processing, and settlement services (Merchant Acquiring Services).  The Card Associations Rules require Wells Fargo Bank, N.A. Canadian Branch (Bank) to have a direct agreement with Merchant once the Merchant’s annual transaction volume exceeds a certain amount. To facilitate this requirement, Tib Finance, Processor (defined below) and Bank (Processor and Bank, collectively referred to as Acquirers) have included additional terms and conditions in this Exhibit 6 that will become a part of the Agreement. 

1.Tib Finance.  Tib Finance will facilitate the provision of the Merchant Acquiring Services outlined in the Agreement, including, supporting chargebacks, reporting, status changes, and questions about the Merchant Acquiring Services.

2.Processor.  First Data Canada Ltd. (Processor), and/or Tib Finance through a separate agreement between Processor and Tib Finance, will provide the Merchant Acquiring Services to Merchant.  

3.Bank.  Bank is the member of Visa and MasterCard that sponsors Tib Finance, Processor and Merchant’s acceptance of Visa and MasterCard transactions. As between Bank and Processor and Bank and Tib Finance, only Bank is approved to extend acceptance of Visa and MasterCard transactions directly to Merchant. Bank is responsible for providing Tib Finance (as allowed by the Card Association Rules) or Merchant with settlement funds for Visa and MasterCard transactions. As the member of the Card Associations, Bank is responsible (either directly or through Processor or Tib Finance) for advising Merchant of the Card Association Rules that Merchant must follow. The Merchant Processing Services that you receive from any Card Association other than Visa and MasterCard are provided by Tib Finance and/or Processor and not by Bank.

Additional Terms and Conditions

4.Reserve.

In addition to Tib Finance’s holdback and rolling reserve rights in the Agreement, the Acquirers may require the

Merchant to fund a cash reserve (Reserve) in an amount that reflects the Acquirers’ assessment of risk, as they may determine in their discretion from time-to-time. The Reserve is a payment obligation of the Acquirers, established by holding back transaction proceeds or debiting the Settlement Account in order to potentially offset any obligations that the Merchant may have to the Acquirers. The Reserve is not a segregated fund that the Merchant may claim to own. The Acquirers are obligated to pay to the Merchant any amounts remaining from the Reserve after all other thencurrent and contingent liabilities or obligations related to the  Merchant’s payment transactions have expired (as provided for under the Network Rules).

4.1.The obligations due to the Merchant from the Reserve will not accrue interest unless required by applicable laws.

4.2.The Acquirers will notify the Merchant if a Reserve is established (including its amount) or if the amount of the Reserve is modified.

4.3.The Acquirers may set off any obligations that the Merchant owes to the Acquirers from the Reserve.

4.4.Although the Merchant acknowledges that the Reserve is a general obligation of the Acquirers, and not a specifically identifiable fund, if any person claims that the Reserve is an asset of the Merchant that is held by the Acquirers, the Merchant grants and acknowledges that the Acquirers have a security interest in the Reserve and, at Acquirers request, will provide documentation to reflect this security interest.

5.Set-off. All funds that the Acquirers owe to the Merchant under this Agreement are subject to the Merchant’s payment obligations under this Agreement. The Acquirers may set off amounts the Merchant owes to either or both of the Acquirers against any funds that either or both of the Acquirers owe to the Merchant.

6.Assignment.  Acquirers may each, in whole or in part, assign or transfer the Agreement or this Exhibit 5 or delegate or subcontract its respective rights, duties, or obligations under the Agreement or this Exhibit 5 without Merchant or Tib Finance’s consent. Merchant further acknowledge that another financial institution may be substituted for Bank with respect to Bank’s obligation. 

7.Third Party Beneficiary to the Agreement. In the United States (Territory) Processor and Bank are direct and intended third party beneficiaries to the Agreement, and may enforce their rights (i.e., confidentiality, indemnification, liability limitations, compliance, and data security, and third party fees) directly against Merchant without objection based on lack of privity or any similar claim.

8.Termination.  In addition to the termination rights in the Agreement, Bank and/or Processor may terminate the Agreement without advance notice for any other reason, without cause.

9.Reporting. If this Agreement is terminated for cause, Merchant acknowledge that Bank or Processor may be required to report your business name and the names and other identification of your principals to the Card

Associations. Merchant expressly agree and consent to such reporting in the event Merchant is terminated as a result of the Acquirers or Tib Finance’s  termination for cause or for any reason specified by the Card Association(s) as cause.  Furthermore, Merchant agrees to waive and hold us harmless from and against, any and all claims which you may have as a result of such reporting.

10.Arbitration. 

10.1.This arbitration provision will be broadly interpreted. If Merchant has a dispute with Processor or Bank that cannot be resolved informally, Merchant or Bank or Processor may elect to arbitrate that dispute in accordance with the terms of this arbitration provision rather than litigate the dispute in court. In arbitration, there is no judge or jury, and there is less discovery and appellate review than in court.

10.2.Notwithstanding Section 11.1, the parties agree that the following will not be subject to arbitration: (a) disputes relating to the scope, validity, or enforceability of this arbitration provision; (b) any claim filed by either party in which the amount in controversy is properly within the jurisdiction of a small claims court; and (c) any dispute related to the validity of any party’s intellectual property rights.

10.3.If a party elect to resolve the dispute through arbitration pursuant to this arbitration provision, the party initiating the arbitration proceeding must open a case with the American Arbitration Association - Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043, 877-495-4185, www.adr.org.

10.4.A Claim that is not resolved directly between the parties within 90 days shall be resolved by arbitration as set out in this Section 10 and the National Arbitration Rules (the “Rules”) of ADR Institute of Canada, Inc. (the “Administrator”) or its successors or replacement Administrator.  For a copy of the Rules, or for other information about the Administrator contact:  ADR Institute, 234 Eglinton Avenue East, Suite 500, Toronto, Ontario M4P 1K5; e-mail [email protected].  If a party chooses arbitration to resolve a Claim, neither party may commence litigation in court in respect of such Claim. If there is a conflict between this arbitration provision and the Rules, this arbitration provision will govern. If the Rules will not administer a proceeding under this arbitration provision as written, it cannot serve as the arbitration organization to resolve your Dispute. If this situation arises, the parties will agree on a substitute arbitration organization. If the parties are unable to agree, the parties will mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this arbitration provision as written. If there is a conflict between this arbitration provision and the rest of this Agreement, this arbitration provision will govern.

10.5.A single arbitrator will resolve the dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect your information and other confidential or proprietary information. If the claim alleged in the dispute is for $10,000 or less, and the dispute is not excluded based on section 11.2 above, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the rules of the selected arbitration organization. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement.

10.6.If an award granted by the arbitrator exceeds $50,000, either party can appeal that award to a threearbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The arbitration organization will then notify the other party that the award has been appealed. The members of the three-arbitrator panel will be selected according to the Rules. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel will be final and binding.

10.7.ALL PARTIES TO AN ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS

ACTION, JOINT, OR CONSOLIDATED BASIS OR ON A BASIS INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER CLIENTS, OR OTHER PERSONS.

10.8.The arbitrator may award injunctive or similar relief only in favor of the individually named party and only to the extent necessary to provide relief warranted by that individual party’s claim. The arbitrator may not award injunctive relief applicable to any class or similarly situated individual or groups.

10.9.The arbitration will take place in the Province of Ontario.

10.10.Acquirers will pay arbitration filing fees and arbitrator’s costs and expenses notified to Acquirers prior to the commencement of the arbitration. Merchant is responsible for all additional costs that you incur in the arbitration, including fees for attorneys or expert witnesses. If the arbitration is resolved in our favor, Merchant will reimburse us for the filing fees and costs paid to Merchant only up to the extent awardable in a judicial proceeding. If the arbitration is resolved in Merchant’s favor Merchant will not be required to reimburse Acquirers for any of the fees and costs paid by Acquirers. Notwithstanding anything to the contrary in this arbitration provision, Acquirers will pay all fees and costs that Acquirers are required by law to pay.

10.11.IF MERCHANT DOES NOT WISH TO ARBITRATE DISPUTES, MERCHANT MUST NOTIFY ACQUIRERS IN WRITING WITHIN 30 DAYS OF THE DATE THAT MERCHANT FIRST RECEIVE THIS

AGREEMENT BY WRITING MERCHANT’S NAME, ADDRESS AND ACCOUNT NUMBER AS WELL AS A

CLEAR STATEMENT THAT MERCHANT DOES NOT WISH TO RESOLVE DISPUTES THROUGH

ARBITRATION AND SENDING THAT NOTICE EITHER (a) BY E-MAIL TO

[email protected]; (b) BY FAX AT 402-916-2200; or (c) BY MAILING TO

“ARBITRATION OPT OUT NOTICE, 3975 N.W. 120TH AVENUE, CORAL SPRINGS, FL 33065 (THESE FAX

NUMBERS AND ADDRESSES ARE ONLY FOR SUBMITTING THE NOTICE DESCRIBED IN THIS SECTION). MERCHANT’S DECISION TO OPT OUT OF ARBITRATION WILL HAVE NO ADVERSE EFFECT ON YOUR ELATIONSHIP WITH ACQUIRERS OR THE SERVICES PROVIDED BYTHE ACQUIRERS.

10.12.If any part of Section 11.7 is found to be illegal or unenforceable, the entire arbitration provision will be unenforceable, and the dispute will be decided by a court. If any other clause in this arbitration provision is found to be illegal or unenforceable, that clause will be severed from this arbitration provision, and the remainder of this arbitration provision will be given full force and effect.

10.13.MERCHANT, PROCESSOR, BANK AND TIB FINANCE EACH HAVE AGREED TO WAIVE THE RIGHT TO TRIAL BY JURY.

11.Choice of Law.  If the parties elect to forgo arbitration, or if any dispute is decided by a court as allowed in Section 11.12, the parties acknowledge and agree that all disputes and this Agreement will be governed by the Province of Ontario law (exclusive of conflicts and choice of law rules calling for a different result.

12.Notices.  For purposed of this Territory, notice to Processor will be sent to:  First Data Canada Ltd., Attention:

President, 2630 Skymark Ave., Suite 400, Mississauga, Ontario, L4W 5A4, with a copy to: First Data Merchant Services LLC, Attn: General Counsel’s Office, 6855 Pacific Street, AK-32, and Omaha, NE 68106.  Emailed notices to First Data will be sent to: [email protected]; and notices to Bank as described on page 1 of this Exhibit 5

13.Any capitalized terms used in this Exhibit 5and not specifically defined in this Exhibit 5, are given the meaning ascribed to them in the Agreement.

14.English Language.  The parties hereby confirm their express wish that any documents and notices related thereto be drawn up in English and declare themselves to be satisfied therewith, the whole, however, without prejudice to any documents which may from time to time be drawn up in French and English.  Par les présentes, les parties confirment qu’elles souhaitent expressément que cette convention et tous les documents et avis connexe soient rédigés en anglais; elles s’en déclarent satisfaites sans préjudice, toutefois, à tout document ou avis qui pourrait, de temps à autre, être rédigé à la fois en français et en anglais.

15.Merchant’s Termination Without Cause.  In the event Processor notifies Merchant of: (i) an increase in or any additional fees (subject to 90 days prior written notice); (ii) a material change to the terms the services none of which were previously negotiated and agreed to by the parties, Merchant understands that it may terminate the Agreement without further cause or penalty by providing Processor 30 days’ written notice prior to the effective date of such modification.  Merchant agrees that continued use of the services, after the effective date of any modification constitutes acceptance throughout the initial or any renewal term of the Agreement.  Merchant agrees that upon delivery of its notice of termination, it will fund its Reserve Account as set forth in section 4.

16.Pre-Notificaton Requirement. You hereby waive the “Pre-notification/Confirmation” requirements set out in Appendix II of Rule H1 (“Pre-authorized Debits”) of the Canadian Payments Association. The statements made in your Agreement are true. You acknowledge having read your Agreement, and agree to be bound by all provisions printed herein.

EXHIBIT 2

FEES

See Fees with Payment Facilitator

EXHIBIT 7 For Merchants Deploying Clover

Clover Services and Equipment Schedule – US Merchants

1.Clover Services.

1.1.First Data Merchant Services LLC (“Provider”) will provide the Sub-Merchant with a proprietary operating system, firmware, and a suite of software applications (together, Clover Services) that integrate point of sale functionality, and acquiring services through Clover Devices (defined below) as well as a Provider designated website. The Clover Services described in this Schedule are provided by Provider and not Santander Bank. The Bank has no performance obligations or liabilities to the Sub-Merchant in connection with the Clover Services.

1.2.The software applications (Clover SaaS Applications) that make up the default Clover Services may vary from time-to-time, and Provider will provide the Sub-Merchant with periodic updates to them (such as maintenance releases or bug fixes). Provider will also provide the Sub-Merchant with documentation and an operating guide for the Clover Services via the Internet. The Sub-Merchant may download the Software applications that are part of the Clover Services during or after the initial set-up of their Clover Devices. The Sub-Merchant may also designate certain Apps (defined below) that it wants pre-installed or installed on its Clover Devices and enabled with its Clover Services; and in connection with this, the Sub-Merchant authorizes Provider to (1) accept the agreements between the App developers and the Sub-Merchant; (2) pre-install or install the Apps on the SubMerchant’s Clover Devices; and (3) enable the Apps with the Sub-Merchant’s Clover Services; all on the SubMerchant’s behalf.  

1.3.Clover Services will enable electronic communications with the Sub-Merchant’s customers (such as sending digital transaction receipts, marketing, or other materials via email or text). Customers must consent to receiving electronic communications and provide their email address or phone number when prompted by the Clover Services in order to receive these electronic communications. Electronic communications may be from the SubMerchant, Provider, Clover, or other third parties (such as an App developer); and must use the contact information provided by customers. Provider and the Sub-Merchant may not independently provide or modify a customer’s consent to electronic communications. Some laws may limit how a customer’s contact information is used for electronic communications. Each party is responsible for knowing and following these laws, and the Sub-Merchant and Provider are not responsible for the other party’s (or any third parties, such as an App developer’s) compliance with these laws. 

1.4.Clover Services will also support offline payment transactions and point-of-sale activities; however, the SubMerchant conducts these transactions and activities at its own risk and will be responsible for any subsequent transaction denials or chargebacks. 

1.5.Clover Services require the Sub-Merchant to set up and maintain an account with Clover Networks, Inc. (an affiliate of Provider, Clover), which will be used to provide the Clover Services. Information that the SubMerchant provides when setting up its account is the Sub-Merchant’s Confidential Information, and Provider will manage the account information according to the terms of the Agreement and Clover’s privacy policy (available at clover.com/privacy-policy). The Sub-Merchant is responsible for maintaining the confidentiality of its account information and access credentials (such as account numbers, passwords, or security questions and answers). Provider will rely on the Sub-Merchant’s account credentials to authenticate access to the account or its information, and may deny access to the Sub-Merchant’s account if it believes someone is misusing the SubMerchant’s credentials. 

1.6.The Clover Services will provide the Sub-Merchant with access to a digital marketplace (Clover App Market) with links to software applications (Apps) that the Sub-Merchant may obtain from developers. Although designed to function with the Clover Services, Apps are not part of the Clover Services and are provided under separate agreements between their developer and the Sub-Merchant. The Sub-Merchant uses Apps at its own risk. Provider has no responsibilities or performance obligations for Apps that are provided by third party developers. The Sub-Merchant is solely responsible for its use of Apps, compliance with their corresponding agreements, and payment of any fees associated with them. 

2.Clover Equipment. 

2.1.Provider will provide the Clover-branded equipment (Clover Equipment) identified in the table in Section 3 below, which will be operable with the Clover Services provided under this Schedule, and will be the SubMerchant’s exclusive provider of Clover Equipment.  

2.2.The Sub-Merchant may order additional Clover Equipment on a repeat basis by submitting one or more purchase orders to Tib Finance Inc. Purchase orders may be in paper form, electronic, or any other format that Provider regularly accepts, including through Provider’s online portals (Provider rejects any purchase orders or other forms that contain additional sale, payment, lease, license, or other terms that it did not provide to the SubMerchant). Provider will invoice the Sub-Merchant for additional Clover Equipment as it is ordered.

2.3.Provider will ship Clover Equipment to the location designated by the Sub-Merchant, which may be stated in the applicable purchase order or other written instructions from the Sub-Merchant. The Sub-Merchant is responsible for ensuring the accuracy and completeness of all information, data, and instructions that it provides to Provider in connection with Clover Equipment. Provider will rely on the information, data, and instructions provided by the Sub-Merchant when shipping the Clover Equipment; however, Provider will not be required to act on the Sub-Merchant’s instructions if it reasonably doubts an instruction’s contents or its compliance with this Schedule, the Agreement, or any applicable laws. 

2.4.Title to the Clover Equipment (and risk of loss for it) will transfer to the Sub-Merchant when Provider delivers the Clover Equipment to the carrier that is responsible for shipment from the Provider to the Sub-Merchant. 

3.Fees. The Sub-Merchant will pay Provider the fees for the Clover SaaS Applications and Clover Equipment that are set forth in the tables below and any applicable purchasing agreement.  

SaaS Fee	Price	Driver
Register Lite	$9.95	per unit, per month
Register	$39.95	for first unit, per month
	$9.95	per each additional unit, per month
Counter Service	$39.95	for first unit, per month
	$9.95	per each additional unit, per month
Table Service	$69.95	for first unit, per month
	$9.95	per each additional unit, per month
Wireless Manager	$15.00	per active SIM

Equipment Item1

Initial Quantity

Price

Driver

¹: [Only the Clover Station (including its printer), Clover Mini, Clover Flex, and Clover Mobile devices are subject to the Limited Warranty described below.]

3.1.The Sub-Merchant will pay for additional Clover Equipment orders either upfront via credit card or within 30 days from the date Provider sends the Sub-Merchant an invoice for payment. If Provider does not receive payment within 30 days of its due date, Provider will impose a late charge equal to 1.5% per month, or the maximum amount allowed by law (whichever is less), on the unpaid balance. 

3.2.The Sub-Merchant will pay, or reimburse Provider for, all applicable taxes imposed on Provider with respect to the Clover Equipment. To receive applicable tax exempt benefits for the Clover Equipment (if any), the SubMerchant must provide Provider with its current tax resale certificate; otherwise, Provider will charge taxes for all Clover Equipment sales. The Sub-Merchant is not responsible for paying any of Provider’s income or employment taxes related to the Clover Equipment. 

4.Limited Warranty

4.1.Provider warrants that Clover Equipment will be free from manufacturer induced defects in materials or workmanship for one year (Warranty Period) beginning on the date that Provider, or its designee, ships the Clover Equipment to the Sub-Merchant (collectively, the Limited Warranty).

4.2.The Limited Warranty does not:

(1)apply to non-standard Clover Equipment or any software or the peripherals, materials, supplies, or accessories used in connection with the Clover Equipment; 

(2)cover damage to, accident, or misuse of the Clover Equipment; including, damage resulting from smashed or cracked units or screens; extraneous materials in the interior of the unit (such as cat hair, soil, or dust); contact with liquids; missing unit covers; fire damage; melted or burnt units; cosmetic damage (such as scratches, dents, or broken plastic on ports); improper or inadequate maintenance by the Sub-Merchant (or the Sub-Merchant’s vendors or users); other visible damage; or the Sub-Merchant’s breach of this Schedule; or

(3)apply to defects or damage resulting from software, interfaces, or supplies Provider does not provide; negligence, accident, or acts of nature (including, flood or lightning damage); loss or damage in transit; improper site preparation by the Sub-Merchant (or the Sub-Merchant’s vendors or users); failure to follow written instructions on proper use of the Clover Equipment; unauthorized modification or repair; or normal wear and tear. 

4.3.Except as specifically set forth in this Schedule, Provider disclaims all warranties (express or implied) related to the Clover Equipment, respectively; including warranties of merchantability, fitness for a particular purpose, non-infringement, accuracy, and uninterrupted or error-free operation. 

4.4.The Sub-Merchant will contact Provider’s support center for assistance with defective Clover Equipment. Provider will provide a Return Merchandise Authorization (RMA) call tag to the Sub-Merchant if Provider deems the Clover Equipment defective during the Warranty Period. The Sub-Merchant, at its cost, may use the RMA to ship the defective Clover Equipment to Provider’s repair facility. Provider will arrange for defective

Clover Equipment covered by the Limited Warranty to be repaired or replaced, and shipped back to the SubMerchant at no additional cost. Provider warrants replacement equipment for the remainder of the Warranty Period corresponding to the original Clover Equipment.

4.5.The Sub-Merchant may not transfer the Limited Warranty to any third parties.

5.Force Majeure. Provider and the Sub-Merchant will be excused from their performance obligations under this Schedule if their respective performance is prevented by: (1) civil unrest, including labor disputes, strikes, or riots; (2) natural disasters, including floods, hurricanes, tornadoes, or earthquakes; (3) rationing or other materials shortages; (4) utility grid failures, including electric transmission or communication line failures; (5) changes in applicable law; or (6) governmental or judicial acts; all of which are beyond a party’s reasonable control (these events, Force Majeure Events). Provider and the Sub-Merchant will resume their performance under this Schedule as soon as reasonably possible following a Force Majeure Event.

EXHIBIT 8For Merchants deploying Apple Pay

PLEASE READ THE FOLLOWING APPLE PAY PLATFORM WEB TERMS AND CONDITIONS  FOR

DIRECT MERCHANTS (“TERMS AND CONDITIONS”) CAREFULLY BEFORE  DOWNLOADING OR USING THE APPLE PAY WEB APIS OR APPLE PAY PLATFORM. THESE TERMS AND CONDITIONS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU  AND APPLE.

Apple Pay PlatformWeb Terms and Conditions for Direct Merchants

Purpose

These Terms and Conditions set forth the rights and obligations of Apple and You as they relate  to Your use of the Apple Pay Platform to conduct transactions from or through Your Websites.  These Terms and Conditions may be modified by Apple from time to time, and Your continued  use of the Apple Pay Web APIs and Apple Pay Platform will be deemed acceptance of such  updated Terms and Conditions.

1.Accepting these Terms and Conditions; Definitions

1.1Acceptance

In order to use the Apple Pay Web APIs and Apple Pay Platform, You must first accept these  Terms and

Conditions. If You do not or cannot accept these Terms and Conditions, You are not  permitted to use the Apple Pay Web APIs or Apple Pay Platform. Do not download or use the  Apple Pay Web APIs or Apple Pay Platform in that case. You accept and agree to the terms of  these Terms and Conditions on Your own behalfand/or on behalf of Your company, organization,  educational institution, or agency, instrumentality, as its authorized legal representative, by enabling and/orusing theApple Payfunction in your account with Tib Finance.

1.2Definitions

Capitalized terms used in these Terms and Conditions and not otherwise defined in this Section

1.2 shall have the same meanings ascribed to such terms in the PLA.

“Affiliates” mean any other corporation, partnership, limited liability company, joint venture,  association, trust, unincorporated organization or other business entity that controls, is controlled   by, or is under common control with an entity, where “control” means that the entity possesses,  directly or indirectly, the power to direct or cause the direction of the management policies of the  other entity, whether through ownership of voting securities, an interest in registered capital, by  contract, or otherwise.

“Apple Marketing Guidelines” mean the guidelines set forth at http://www.apple.com/legal/trademark/guidelinesfor3rdparties.html(or any successor URL), the   Apple Pay Identity Guidelines for iOS Developers available at https://developer.apple.com/apple-pay/Apple-Pay-Identity- Guidelines.pdf (or any successor URL), the Apple Pay Merchant  Marketing Guide as provided to You by Apple, plus any additional marketing and use guidelines   provided by Apple in writing (including all amendments to any of the foregoing as may be  furnished from time to time by Apple to You).

“Apple Marks” mean all trademarks, service marks, trade dress, logos, taglines, slogans, product   names, any other similar intellectual property, registered or unregistered, directly or indirectly   owned by or licensed to Apple anywhere in the world that are identified on Exhibit A attached  hereto.

“Apple Metrics” mean any metrics (in any format or context) regarding the usage, performance,   or transaction- level information relating to the Apple Pay Platform (including without limitation the   number and dollar value of transactions completed from or through Websites).

“Apple Pay Platform” means the payment platform that utilizes Apple Technology to enable end-  users to make payments using credit, debit, and prepaid cards and other physical, digital or     virtual payment cards, credentials, or account access devices and access other related services   using Apple Products designated by Apple or its Affiliates, as the same may be modified,  rebranded or substituted from time to time by Apple.

“Apple Pay Web APIs” mean the application programming interface(s) published by Apple  (including any updates to or subsequent versions thereof) that enable end-users to facilitate  payment transactions using the Apple Pay Platform from a Website, and include other payment-  related functionality as described in the Documentation.

“Apple Pay Web Guidelines” means the “Apple Pay on the Web: Acceptable Use Guidelines”  set forth at  https://developer.apple.com/go/?id=apple-pay-guidelines (or any successor URL), as   the same may be updated from time to time.

“Apple Product” means any Technology, product or service distributed under an Apple Mark, or  used internally by Apple or an Apple Affiliate.

“Apple Technology” means (a) the Apple Pay Web APIs, Apple Pay Platform, and any Updates  that Apple may make available to You under these Terms and Conditions; or (b) any other  Technology (and all Intellectual Property therein or thereto) that Apple or its Affiliates owned,  conceived, reduced to practice, authored, or otherwise created or developed prior or subsequent  to the Effective Date of these Terms and Conditions.

“Applicable Laws” mean all laws (including common law), legal or administrative codes, statutes,   ordinances, regulations, judgments, writs, injunctions, rulings or orders, decrees and orders of any   Governmental  Authority.

“Comparable Platform” means any software that enables the use of personal electronic devices  to make contactless, mobile or online transactions (including transactions involving or accessing   loyalty, rewards and stored value features).

“Documentation” means any technical or other specifications ordocumentation that Apple may provide to You

for use in connection with the Apple Pay Web APIs.

“Effective Date” means the date on which You accept these Terms and Conditions in  accordance with Section 1.1.

“Governmental Authority” means any domestic or foreign, federal state or local government,  any political subdivision thereof and any entity exercising executive, legislative, judicial,  regulatory, or administrative functions of or pertaining to government, regardless of form,   including any agency, bureau, court, tribunal, or other instrumentality, having jurisdiction over   the applicable party and its respective Affiliates.

“macOS” means the macOS operating system software, including any successor versions  thereof.

“Merchant Marks” mean all trademarks, service marks, trade dress, logos, taglines, slogans,  product names, any other similar intellectual property, registered or unregistered, directly or   indirectly owned by or licensed to You and Your Affiliates anywhere in the world.

“Person” means any individual, corporation, limited liability company, partnership, firm, joint  venture, association, trust, unincorporated organization, Governmental Authority or other entity.

“Personal Data” means any personally identifiable information, including without limitation any  personal financial information, relating to or derived from Your use of the Apple Pay Platform  and/or the Apple Pay Web APIs.

“PLA” means the Apple Developer Program License Agreement entered into between You and  Apple, including all attachments, schedules, exhibits, and amendments thereto, under which You  have the right to use the Apple Software and Services (as defined therein).

“Platform Provider” means any e-commerce or payments platform provider (a) engaged by You  or Your Affiliates to facilitate acceptance of payment transactions from or through Your Websites  pursuant to a separate written agreement between You and such provider (the “Provider  Agreement”); and (b) has an active and valid Apple developer account with Apple.

“Program” has the meaning set forth in Section 3.

“Public Software” means any software that, as a condition of use, copying, modification or  redistribution, (a) requires attribution, (b) requires such software and derivative works thereof to   be disclosed or distributed in source code form, or (c) requires such software to be licensed for   the purpose of making derivative works, or to be redistributed free of charge, commonly referred  to as free or open source software, including but not limited to software licensed under the GNU   General Public License, Lesser/Library GPL, Mozilla Public License, Common Public License,  Common Development and Distribution License, Apache, MIT or BSD license.

“Safari” means Apple’s web browser product distributed under the name Safari (or any successor  thereto).

“Security Breach” means any actual or suspected loss or unauthorized access, use, or  disclosure of Personal Data in the possession, custody or control of You, Your Affiliates, or Your  Platform Providers in connection with Your Websites.

“Technology” means anyinformation, designs, drawings, specifications, schematics, software   programs (including source and object codes), manuals and other documentation, data,   databases, technical or business processes, methods of operation, or methods of production.

“Unauthorized Transaction” means any transaction initiated by a Person who is not authorized  to make a transaction from or through a Website, including without limitation, any fraudulent  transaction.

“Updates” means bug fixes, updates, upgrades, modifications, enhancements, supplements, and   new releases or versions of the Apple Pay Web APIs or Apple Pay Platform, or to any part  thereof.

“Website” means an e-commerce website developed by or on behalf of You, under Your name,  trademark or brand, that runs in Safari on macOS and integrates with the Apple Pay Platform using the Apple Pay WebAPIs. “You” and “Your” means and refers to the individual(s) or legal entity that has accepted these  Terms and

Conditions pursuant to Section 1.1 above and that is using the Apple Pay Web APIs  and the Apple Pay Platform or otherwise exercising rights under these Terms and Conditions.

2.General Terms and Conditions

Except as explicitly provided for in these Terms and Conditions, each party’s rights and  obligations under these

Terms and Conditions shall be governed by the PLA, the terms and

conditions of which are hereby incorporated herein by reference. In furtherance of the foregoing   and not limitation: (a) Apple’s license, and Your use, of the Apple Pay Web APIs under these  Terms and Conditions shall be subject to the terms and conditions of the PLA governing Apple  Software, Apple SDKs and Apple Pay APIs; and (b) Your use of the Apple Pay Platform shall be  subject to the terms and conditions of the PLA governing Apple Services. You acknowledge and  agree that the software and services provided by Apple under these Terms and Conditions will be   considered part of the Program (as referenced in the PLA), and that the Websites will be considered Covered Products under the PLA. In applying the terms and conditions of the PLA to  these Terms and Conditions, all references to “this Agreement” as used in the PLA shall include  these Terms and Conditions.

In the event of a direct conflict between the terms of the PLA and these Terms and Conditions, the  terms of the

PLA shall prevail except as explicitly set forth in these Terms and Conditions with  respect to Apple Pay Web APIs, Websites, and the Apple Pay Platform (provided, however, that  the PLA is not intended to prevent You from exercising any rights granted to You solely with  respect to Apple Pay Web APIs, Websites, and the Apple Pay Platform in these Terms and  Conditions in accordance with the terms and conditions set forth herein).

Notwithstanding the   foregoing, You acknowledge and agree that a conflict between these Terms and Conditions and   the PLA shall not exist where the PLA sets forth terms or conditions applicable to a subject matter  that is not addressed by these Terms and Conditions.

3.Program. Subject to these Terms and Conditions, Apple shall make the Apple Pay Web APIs  available to You to the extent required for You to facilitate payment transactions using the Apple Pay Platform from or through Your Websites (the “Program”).

4.Apple Pay Web APIs

4.1Apple Pay Web APIs. Your right to access and use the Apple Pay Web APIs is subject to  these Terms and Conditions and the PLA. For purposes of applying the terms and conditions of  the PLA to these Terms and Conditions, all references to “Apple Pay APIs” in the PLA shall mean  the Apple Pay Web APIs, and all references to “Merchants” in the PLA shall mean You. Where  applicable (including for the avoidance of doubt and without limitation Sections 3.2, 3.3.9, 3.3.10,   3.3.11, 3.3.42 and 3.3.43 of the PLA), all references to “Your Application” in the PLA shall mean  “the Websites”, and all references to “iOS Product” or “Apple Watch” in the PLA shall also include  “macOS Product”. For the avoidance of doubt, all references to the term “Apple Pay Payload” in  the PLA shall include any customer data package passed through the Apple Pay Web APIs as   part of a payment transaction (e.g., name, email, billing address, shipping address, and device  account number), and all references to the term “Intermediary Party” in the PLA shall include  Platform Provider.

4.2License Grant. Subject to the terms and conditions of these Terms and Conditions,      Apple hereby grants to You during the Term, a limited, non-exclusive, personal, revocable, non-   sublicensable and non-transferable license to use and incorporate the Apple Pay Web APIs into  Your Websites solely for the purpose of facilitating Apple Pay Platform transactions that are made  from or through Your Websites.

4.3Use Restrictions. In addition to the restrictions set forth in Section 2.6 of the PLA, the  license granted pursuant to Section 4.2 above is expressly conditioned upon Your and Your  Affiliates’ compliance with all of the following requirements:

(a)You agree to comply with the Apple Pay Web Guidelines;

(b)You agree not to use the ‘CanMakePaymentWithActiveCard’ API, except for the sole purpose of (i) displaying the “Apple Pay” button upstream; (ii) presenting the  Apple Pay Platform as a default payment option or as a payment option in  checkout when no other Comparable Platforms are available on the Websites; or

(iii) enabling users to set up the Apple Pay Platform. In addition, on any  webpage where a Comparable Platform is offered, You agree to call the ‘CanMakePayment’ API, and if a user has a device capable of supporting the Apple Pay Platform, then You agree to also offer the Apple Pay Platform as a  payment option on the same webpage of such Websites;

(c)Your Websites may collect donations for nonprofits only after You have received  written approval. Any collection of such donations through Your Websites must be in compliance with all Applicable Laws (which may include providing a   receipt), and must fulfill all applicable regulation or registration requirements, in  the country or territory where You enable such donation to be made.  If You are  collecting donations on behalf of third party nonprofits, You are responsible for  ensuring that such third party nonprofits are in compliance with the criteria provided to You, as the same may be updated from time to time (the “Nonprofit  Criteria”). If any third party nonprofit fails to meet the Nonprofit Criteria, then You  must immediately cease collecting donations on behalf of such non-compliant  third party nonprofit.

(d)Your Websites must:

(i)not contain any malware, malicious or harmful code, or other internal  component (e.g. computer viruses, trojan horses, “backdoors”), which could  damage, destroy, or adversely affect Apple hardware, software or services,  or other third party software, firmware, hardware, data, systems, services, or  networks;

(ii)not interfere with security, user interface, user experience, features or  functionality of Safari, macOS, or other Apple Products; or

(iii)not disable, override or otherwise interfere with any Apple-implemented  system alerts, warnings, display panels, consent panels and the like,  including, but not limited to, those that are intended to notify the user that the  user's location data, address book data, calendar, photos, audio data, and/or  reminders are being collected, transmitted, maintained, processed or used,          or intended to obtain consent for such use;

(e)if any Website includes any Public Software, You agree to comply with all  licensing terms applicable to such Public Software. You agree not to use, or  authorize the use of, any Public Software in the development of the Websites in  such a way that would cause the non- Public Software portions of the Apple Pay  Web APIs or Apple Pay Platform to be subject to any Public Software licensing  terms or obligations;

(f)if Apple makes available new versions of the Apple Pay Web APIs for any  reason, including without limitation to address a security breach or security  vulnerability regarding Personal Data, update the customer experience, or  provide additional features or functionality, then You agree to update all of Your  Websites to incorporate such new version within a reasonable time period; and

(g)You agree not to disadvantage or discriminate against Apple relative to other

Comparable Platforms with respect to the display and availability the Apple Pay  Platform from or through the Websites. For the avoidance of doubt, the “Apple  Pay” button must be displayed as a payment option on Your Websites on parity  with any other Comparable Platform. In addition, You will not process or decline  transactions, establish transaction, authentication, or other limits applicable to  Websites, or implement, suspend, or discontinue Websites in a manner that

discriminates against transactions on the basis of their participation in the  Program.

If You or Your Affiliates breach any of the foregoing restrictions, You may be subject to  prosecution and damages. All licenses not expressly granted in these Terms and  Conditions are reserved and no other licenses, immunity or rights, express or implied are   granted by Apple, by implication, estoppel, or otherwise.

4.4Updates; No Support or Maintenance.

(a)Apple is not obligated to provide any maintenance, technical or other support for  the Apple Pay Web APIs or Apple Pay Platform. Apple makes no guarantees to  You in relation to the availability or uptime of the Apple Pay Web APIs or Apple  Pay Platform, and Apple is not obligated to provide any maintenance, technical  or other support related thereto.

(b)Apple does not guarantee the availability, accuracy, completeness, reliability, or  timeliness of any data or information displayed in connection with the Apple Pay  Platform. To the extent You choose to use the Apple Pay Platform with Your  Websites, You are responsible for Your reliance on any such data or information.  It is Your responsibility to maintain appropriate alternate backup of all content,  information and data, including but not limited to any content that You may  provide to Apple in connection with the Apple Pay Web APIs or Apple Pay  Platform.

5.Platform Providers. Unless otherwise prohibited by Apple, You may employ or retain a   Platform Provider to assist You in using and incorporating the Apple Pay Web APIs into Websites  pursuant to these Terms and

Conditions, provided that any such Platform Provider’s use of the   Apple Pay Web APIs or any materials associated therewith, including Personal Data, is done  solely on Your behalf and for Your purposes, and only in accordance with a separate written  agreement between Apple and such Platform Provider. In the event of any actions or inactions by  the Platform Provider that would constitute a violation of these Terms and Conditions or otherwise cause any harm, Apple reserves the right to require You to cease using such Platform Provider. In   connection with Your use of a Platform Provider, You authorize such Platform Provider to (a)  provide to Apple and its Affiliates certain reports that may contain data related to Your   participation in the Program; and (b) disclose to Apple and its Affiliates information related to You  and Your Websites in connection with these Terms and Conditions or the Program, including  without limitation information about Your Websites and metadata (such disclosures referred to herein as “Merchant Disclosures”). You grant Apple the right and license to use any information  described in (a) and (b) above for purposes of Apple (i) performing its obligations and exercising its   rights under these Terms and Conditions, and (ii) improving the Apple Pay Platform or     Program. You agree that Apple’s use of such Merchant Disclosures will not be subject to any  confidentiality obligations. Except as otherwise expressly set forth herein, Apple will be free to   use and disclose any Merchant Disclosures on an unrestricted basis without notifying or  compensating You. In connection with Apple’s exercise of any rights to suspend or terminate   Your participation in the Program, You acknowledge and agree that Apple may request Your  Platform Provider to suspend or terminate the Provider Agreement with respect to the provision of  services in connection with the Program.

6.Confidentiality.

6.1Information Deemed Apple Confidential. Subject to the exclusions set forth in Section 9.1   of the PLA, You agree that Apple Metrics and any and all information related to the Apple Pay  Platform that is obtained, generated or created by or on behalf of Apple will be deemed “Apple  Confidential Information”. You agree to protect Apple Confidential Information in strict    compliance with Section 9.2 of the PLA.

6.2Apple Metrics. You shall not disclose Apple Metrics without Apple’s prior written consent,   including disclosures of metrics that do not specifically reference the Apple Pay Platform but   enable recipients to reasonably infer Apple Confidential Information from such metrics.   Notwithstanding the foregoing, You may disclose overall mobile payments or other metrics that   incorporate Apple Metrics where such Apple Metrics are not segregated or identified and cannot   easily be discerned or inferred from the metrics shared by You.

7.Data Protection & Security Breaches. In addition to the terms and conditions set forth in  Sections 3.3.9, 3.3.10 and 3.3.11 of the PLA, You shall implement administrative, technical, and   physical safeguards designed to protect against reasonably anticipated threats or hazards to the   security, integrity, or confidentiality of Personal Data. You shall encrypt all Personal Data in  accordance with industry standards for secure key and protocol negotiation and key management   prior to transmission. Upon discovering a Security Breach, You will (i) promptly notify Apple  thereof, (ii) investigate, remediate, and mitigate the effects of the Security Breach, and (iii)    provide Apple with assurances reasonably satisfactory to Apple that such Security Breach will not   recur. Additionally, if and to the extent any Security Breach or other unauthorized access, use, or   disclosure of Personal Data occurs as a result of an act or omission of You, Your Affiliates, or  Your Platform Providers, You will, at Your cost and expense, upon Apple’s request, provide  notices and/or undertake other related remedial measures (including notice, credit monitoring   services, fraud insurance and the establishment of a call center to respond to customer inquiries)   are reasonably warranted or required by law. In the event of legal proceedings, including but not   limited to regulatory investigations or litigation, following or resulting from a Security Breach, You  will provide Apple with reasonable assistance and support in responding to such proceedings.

8.Marketing;Publicity

8.1Apple Marks. Apple grants to You, during the Term, a personal, non-exclusive, non-  sublicensable, non- transferrable, worldwide, royalty free, license to use the Apple Marks solely in   accordance with the Apple Marketing Guidelines and solely for the purpose of facilitating Apple   Pay Platform transactions from or through

Your Websites. You shall not use the Apple Marks in  such a way as to suggest that Apple endorses or approves of

Your Websites, or any products or  services offered on Your Websites. All other rights in and regarding the Apple Marks, whether  express or implied, are expressly reserved to Apple. In addition,

(a)You agree that the character and quality of all services offered on Your Websites  in association with the Apple Marks shall comply with the Apple Marketing  Guidelines, and that You will conduct Your business and operations associated  with the Apple Marks in full compliance with all Applicable Laws and shall do  nothing to bring disrepute to or in any manner impair or damage the Apple Marks  or the goodwill associated therewith; and

(b)Apple reserves the right to review from time to time any and all Websites, and all  other web pages, marketing and promotional materials, or other materials  prepared or offered by You bearing the Apple Marks. In the event Apple  reasonably determines that any use of the Apple Marks does not materially abide  by the Apple Marketing Guidelines or is in violation of Applicable Laws, You agree  that You will make the reasonable changes or revisions requested by Apple as soon as practicable.

8.2Merchant Marks. You grant Apple and its Affiliates (and their agents and contractors acting on their behalf), during the Term, a personal, non-exclusive, non sublicensable, non-transferable, worldwide, royalty- free, license to use, reproduce, and display the Merchant Marks as follows:

(a)in connection with the Program;

(b)in the marketing, advertising and promotion of the availability of the Apple Pay  Platform in any medium, including the right to use screen shots of Your Websites and images of the Merchant Marks as they may be used in the Apple Pay Platform, including but not limited to use in instructional materials, training  materials, marketing materials, and standard advertising in any medium; and

(c)in a publicly disclosed list of the Apple Pay Platform participants.

You shall be responsible for procuring all rights necessary for the presentation of any Merchant  Marks.

8.3Ownership. Apple retains its right, title and interest in the Apple Marks, and all associated goodwill. All goodwill arising from use of the Apple Marks by You or Your Affiliates will inure to the benefit of Apple. You and Your Affiliates will not adopt, use, or register any corporate  name, trade name, trademark, domain name, service mark or trademark that includes or incorporates any Apple Marks or any term confusingly similar to an Apple Mark. You retain Your  right, title and interest in the Merchant Marks, and all associated goodwill. All goodwill arising from  use of the Merchant Marks by Apple and its Affiliates will inure to the benefit of You. Apple and its Affiliates will not adopt, use, or register any corporate name, trade name, trademark, domain name, service mark or trademark that includes or incorporates any Merchant Marks or any  term confusingly similar to a Merchant Mark.

9.Term and Termination

9.1Term. These Terms and Conditions shall commence on the Effective Date and shall  continue for so long as the PLA is in full force and effect (the “Term”), unless terminated earlier in accordance with Section 9.2.

9.2Termination. In addition to the termination rights set forth in the PLA, Apple may suspend  or terminate these Terms and Conditions immediately upon giving written notice to You:

(a)if You or Your Affiliates fail to comply with any term of these Terms and  Conditions other than those set forth below in this Section 9.2 and fail to cure  such breach within thirty (30) days after becoming aware of or receiving notice of  such breach;

(b)if You or Your Affiliates fail to comply with the terms of Apple Pay Web  Guidelines; or

(c)in the event of a Security Breach that threatens to, or has had, a significant  adverse effect on the Apple Pay Platform.

In addition, either party may terminate these Terms and Conditions for its convenience, for any  reason or no reason, effective thirty (30) days after providing the other party with written notice of  its intent to terminate.

9.3Effect of Termination. Except as expressly permitted by Apple, upon the termination or expiration of these Terms and Conditions, You will immediately (a) cease all use of the Apple Pay Web APIs and Apple Pay Platform and erase and destroy all copies, full or partial, of the Apple Pay Web APIs in Your or Your Affiliates’ possession or control; and (b) cease all use of the Apple  Marks in connection with the Program.

9.4Survival. All terms and provisions of these Terms and Conditions, including any and all  attachments, exhibits, addendums, schedules and amendments hereto, which by their nature are  intended to survive any termination or expiration of these Terms and Conditions, shall so survive,  including the provisions of Sections 1, 2, 4.1, 6, 7, 8.3, 9.3, 9.4,10, 11 and 12 hereof. Apple will  not be liable for compensation, indemnity, or damages of any sort as a result of terminating these

Terms and Conditions in accordance with its terms, and termination of these Terms and  Conditions will be without prejudice to any other right or remedy Apple may have, now or in the  future.

10.Compliance. You shall comply with all Applicable Laws related to Your Websites and all  goods or services offered through Your Websites.

11.Indemnification. For the avoidance of doubt, Your indemnification obligations under Section  10 of the PLA includes Losses incurred by an Apple Indemnified Party and arising from or related   to any of the following: (a) You or Your Affiliates’ activities under these Terms and Conditions,  including but not limited to any end-user claims regarding Your Websites and/or goods or              services offered through Your Websites, or (b) a Security Breach.

12.Limitation of Liability; Disclaimers.

12.1Transaction Verifications. You or, if applicable, Your Platform Provider shall be solely  responsible for verifying the validity of transactions completed using the Apple Pay Web APIs  prior to the delivery of any goods or services to an end-user. Apple will not be liable for You or, if  applicable, Your Platform Provider’s failure to verify the validity of such transactions.

12.2No Apple Liability for Unauthorized Transactions. You acknowledge that Apple has no  responsibility to check that the Apple Pay Platform or the Program allow it to evidence that  transactions made on the Apple Pay Platform from or through Your Websites have been duly  authorized. Apple shall not be liable in any event for any Unauthorized Transactions made by  end-users from or through Your Websites.

12.3Additional Liability Disclaimer.

IN ADDITION TO THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SET FORTH IN THE PLA,

APPLE SHALL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES ARISING FROM THE USE OF THE

APPLE PAY WEB APIS OR THE APPLE PAY PLATFORM, INCLUDING, BUT  NOT LIMITED TO, (I) ANY

LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR  INDIRECTLY), ANY LOSS OF GOODWILL OR

BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, OR OTHER INTANGIBLE LOSS, (II) ANY CHANGES WHICH APPLE MAY MAKE  TO THE APPLE PAY WEB APIS OR THE APPLE PAY

PLATFORM, OR FOR ANY  PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE

APPLE PAY WEB APIS OR THE APPLE PAY PLATFORM (OR ANY FEATURES WITHIN THE APPLE PAY

PLATFORM), OR (III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO PROVIDE ANY DATA

 TRANSMITTED BY OR THROUGH YOUR USE OF THE APPLE PAY WEB APIS OR THE

APPLE PAY PLATFORM. It is Your sole responsibility to maintain appropriate alternate backup  of all of Your content, information and data.

12.4Entire Agreement. These Terms and Conditions and the PLA constitute the entire  agreement between the parties with respect to the Program and Your use of the Apple Pay Web  APIs, and supersedes any prior or inconsistent agreements, negotiations, representations and   promises, written or oral with respect to the subject matter hereof. Notwithstanding the foregoing,   to the extent that You are provided with pre-release materials in connection with the Apple Pay  Platform and such pre-release materials are subject to a separate license agreement,

You agree   that the license agreement accompanying such materials in addition to Section 6 of these Terms  and Conditions shall also govern Your use of such materials. These Terms and Conditions may be  amended in accordance with the terms of the PLA.

Exhibit A

 Apple M ar k s

All use of the Apple Marks under these Terms and Conditions can be found at:

https://developer.apple.com/apple-pay/Apple-Pay-Identity-Guidelines.pdf.

EXHIBIT 9

Tib Finance Reseller License of Cardinal Commerce Corporation Products and Services

1.Licensed Access for Merchant.  Tib Finance will provide Merchant with a limited, fully revocable nontransferable license to utilize such Cardinal products and services as Tib Finance is authorized to resell/license and which are mutually agreed upon by Tib Finance and Merchant (“Services”), which services shall be defined as set forth in the website hosted by Tib Finance and in a schedule of fees, in accordance with the following terms and conditions.  Any license rights not expressly set forth herein are fully reserved to Tib Finance and Cardinal Commerce Corporation.

2.TRANSACTION FEES.  Transaction Fees are those fees paid by Merchant to Tib Finance for the Services, as set forth in a schedule of fees.

3.PAYMENT TERMS

3.1Payment for Services.  Payment of Fees is due in accordance with Section 2. "Fees" shall mean and refer to the consideration set forth in Section 2 to be paid by Merchant to Tib Finance for the Services provided by Tib Finance in accordance with the terms of this Agreement.  The Fees shall be deducted by Tib Finance at payout of funds due to Merchant. If Merchant has a commercially reasonable basis for disputing any portion of the Fees, Merchant must notify Tib Finance in writing within ten (10) calendar days of receipt of the applicable payout statement and any substantiated correction shall be made as a credit against the next payout.  If a Fee or Transaction is not disputed in writing within such period, any dispute as to said Fees shall be waived.  A finance charge of 1 ½ % per month will be charged on all past due balances.  

3.3 Taxes. All amounts payable pursuant to this Agreement are exclusive of taxes. Accordingly, Merchant will be solely and exclusively responsible for any and all current and future applicable taxes, which may be incurred as a result of or otherwise in connection with this Agreement or the provision of the Services, including without limitation, state and local privilege, excise, sales, services, withholding, and use taxes and any taxes or other amounts in lieu thereof paid or payable by Merchant.

4.DISCLAIMER/LIMITATION OF LIABILITY.  To the fullest extent permissible under the applicable law, Tib Finance and its partner, Cardinal Commerce Corporation disclaims all warranties express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, in relation to its Service, use thereof and the results of such use. Tib Finance and its partner, Cardinal Commerce Corporation, shall not be liable to Merchant or any other person or entity for: (a) any indirect, special, incidental, consequential or exemplary damages of any kind arising out of the use or inability to use the Services or any information provided by Tib Finance either through its website or verbally by a representative of Tib Finance, including, without limitation, damages for loss of goodwill, lost profits, business interruption, loss of programs or other data, even if Tib Finance has been advised of the possibility of such damages, or (b) any claim attributable to errors, omissions or other inaccuracies as to the Services. 

 Notwithstanding the foregoing, the cumulative aggregate liability of Tib Finance shall not exceed the actual aggregate amount of compensation and Fees paid to, and received by Tib Finance for the prior six (6) months of the Agreement, less the aggregate sum of Tib Finance’s actual third party expenses.  

5.TERM AND TERMINATION

5.1Term.  This Agreement shall commence on the Effective Date and will remain in effect contemporaneously with the Tib Finance Inc Merchant Agreement between the Merchant and Tib Finance and terminates immediately if the Merchant Agreement between Merchant and Tib Finance is terminated.  

5.2Effects of Termination.   

(a)Upon termination, Tib Finance may deduct any due and unpaid sums from funds owed to Merchant. Otherwise, payment shall be due within ten (10) days of any such termination.

(b)Upon termination of the Agreement regardless of the reason for termination, Merchant will be precluded from using the Services set forth in Section 1 hereinabove, unless otherwise agreed to in writing by Tib Finance and/or Cardinal Commerce Corporation; or

6.INDEMNIFICATION/ HOLD HARMLESS. Merchant agrees to indemnify, defend, and hold Tib Finance and the licensor, Cardinal Commerce Corporation. harmless including its officers, directors, employees and agents from and against any and all liability, claims, losses, damages, injuries, expenses, attorneys’ fees, costs or otherwise, directly or indirectly arising from or related to this Agreement or the products and service contained herein.   

7.REPRESENTATIONS, WARRANTIES AND COVENANTS OF MERCHANT.  Merchant agrees, represents, warrants and covenants as follows:

(a)Merchant is a corporation, limited liability company, partnership or other entity validly existing and in good standing under the laws of the State where formed; 

(b)Merchant has full authority and power to enter into this Agreement and to perform its obligations hereunder; 

(c)Merchant's performance of this Agreement will not violate any applicable law or regulation or any agreement to which it is bound as of the date hereof, including, without limitation the Merchant  Agreement; 

(d)Merchant has been authorized by each Consumer to use the personal and other information of Consumer ("Consumer Information") that shall be provided to Tib Finance hereunder and has the right to use all such Consumer Information in connection with Tib Finance's provision of the Services hereunder in the manner contemplated by this Agreement; and 

(e)Merchant has legal rights and permission for all its Consumers ("Consumer" shall mean and refer to an individual or entity that presents a Payment Brand (defined below) to purchase goods or services from the Merchant and submits a Payment Brand to facilitate payment) for which Merchant requests Services, to obtain said Services related to said Consumers.  Payment Brand shall mean and refer to the type of payment submitted by a customer for services, products or otherwise, including, but not limited to, Visa, MasterCard, American Express, Discover, PayPal, ACH, "Bill Me Later", or any credit card, charge card, debit card, gift card, loyalty card, prepaid card or other alternative method accepted as payment by Merchant.

8.CONFIDENTIAL INFORMATION AND NON-DISCLOSURE

8.1Confidential Information.  The Parties may wish to disclose certain proprietary, Confidential Information ("Confidential Information" shall mean any and all data and information relating to the business of the disclosing Party ("Disclosing Party") which is disclosed to the other Party ("Receiving Party") pursuant to this license. The confidentiality provisions of the Tib Finance Inc Merchant Agreement shall apply in all respects  

8.2Disclosure of Confidential Information. The Receiving Party may use the Disclosing Party's Confidential Information only in furtherance of this Agreement. The Receiving Party shall use reasonable care and discretion to prevent disclosure, publication, or dissemination of the Disclosing Party's Confidential Information.  Disclosure by the Receiving Party of Confidential Information may be made only to officers, directors, general partners, employees, agents, financial advisors or attorneys, Card Organizations, Acquiring banks and entities (collectively, "Representatives") of the Receiving Party who have a reason to know or have access to such information, and have obligated themselves to hold such Confidential Information in trust and confidence or otherwise to comply with the terms herein.  

8.3Consent.  Merchant expressly consents to give Cardinal Commerce Corporation access to fraud, chargeback and authentication data concerning Merchant’s transactions involving the Services.

9.ASSIGNMENT.  Merchant shall not assign this Agreement or any of Merchant's rights and/or obligations hereunder to any third Party without the prior written consent of Tib Finance.  This Agreement shall be binding upon and shall inure to the benefit of any such successors and assigns of Merchant.  No other assignment of this Agreement shall be made by Merchant without Tib Finance's prior written consent, and any attempt to assign this Agreement without such prior written consent shall be deemed null and void.  Tib Finance may assign this Agreement and such assignment shall be binding upon and inure to the benefit of Tib Finance, and its respective successors and assigns.

10.SURVIVAL.  The provisions of Sections 3.1, 4, 5.1, 5.2, 6, 7, 8, and 9 shall survive the termination of this Agreement, to the extent applicable.

EXHIBIT 10

TIB FINANCE DATA PROTECTION ANNEX

This Tib Finance Data Protection Annex (“DPA”) applies between Merchant and Tib Finance. The parties agree that the Standard Contractual Clauses applicable pursuant to this DPA take priority over any conflicting terms in this DPA. If there is any conflict between this DPA and the Agreement regarding Tib Finance’s privacy and security obligations, the provisions of this DPA shall control.

1.Definitions

1.1In this DPA, the following terms have the meaning given to them below:

“CCPA” means the California Consumer Privacy Act 2018 and any legislation and/or regulation implementing or made pursuant thereto, or which amends, replaces re-enacts or consolidates.

“Customer” means a customer of Merchant purchasing products and/services.

“Customer Personal Data” means the personal data relating to Customers which is processed by Tib Finance in the provision of the Tib Finance Services to Merchant.

"EU-US Data Privacy Framework" (“DPF”) means the adequacy decision issued by the European

Commission on July 10, 2023, on the adequate level of protection of personal data to self-certified United

States companies under the EU-US Data Privacy Framework, and includes unless otherwise stated, the UK Extension to the EU-US DPF (UK DPF Extension), and the Swiss-US Data Privacy Framework (Swiss-US DPF), and to which Tib Finance is currently certified.

“EEA” means the European Economic Area.

“European Privacy Law” means any data protection, privacy, confidentiality or security laws or regulation of Switzerland, the United Kingdom or a country within the EEA (including, as applicable, the GDPR) applicable to the processing of personal data under this Agreement.. 

“European Personal Data” means Merchant Personal Data and Customer Personal Data the processing of which is within the material and territorial scope of European Privacy Law.

“EU SCCs” means the applicable module (as stated in clause 8.2 of this DPA) of the standard contractual clauses for the transfer of personal data to third countries adopted pursuant to the European Commission's Implementing Decision (EU) 2021/914 of 4 June 2021 as available hereas updated, amended, replaced or superseded from time to time and, for the purposes of Merchant Restricted Transfers, on the basis that:

(i)where module 2 (transfer controller to processor) applies in accordance with clause 8.2 of this DPA, for the purposes of clause 9 of the EU SCCs, option 2 (general written authorisation) applies and the specified time period is 7 days before such changes take effect; 

(ii)where either module applies:

(a)the optional docking clause 7 is deleted;

(b)the independent dispute resolution option in clause 11 of the EU SCCs does not apply; 

(c)for the purposes of clause 13(a) of the EU SCCs: (i) where the Merchant is established in an EEA Member State, the supervisory authority with responsibility for ensuring compliance by the Merchant with European Privacy Law as regards the data transfer shall act as the competent supervisory authority; and (ii) where the Merchant is not established in an EEA Member State but falls within the territorial scope of application of European Privacy Law according to Article 3(2) of the GDPR (or equivalent), the supervisory authority of the Member State in which the Merchant has appointed a representative within the meaning of Article 27(1) GDPR (or equivalent) shall act as competent supervisory authority;

(d)for the purposes of clause 17 of the EU SCCs, the chosen option is option 1 and the chosen law is the law of Ireland; 

(e)for the purposes of clause 18(b) of the EU SCCs, the chosen courts are courts of Ireland; 

(f)Appendix 1, Section A of this DPA operates as Annex I to the EU SCCs; and 

(g)Appendix 1, Section B of this DPA operates as Annex II to the EU SCCs.

“GDPR” means Regulation (EU) 2106/679.

“Merchant Personal Data” means personal data, other than Customer Personal Data, that is provided by or on behalf of Merchant to Tib Finance under the Agreement. For the avoidance of doubt, Merchant’s business contact information is not by itself deemed to be Personal Data subject to this DPA.

 “Merchant Restricted Transfer” means a transfer by the Merchant of European Personal Data to Tib Finance in a country or territory which does not ensure an adequate level of data protection within the meaning of European Privacy Laws to the extent European Privacy Laws apply to the Merchant’s processing when making that transfer.

"Personal Data Breach” means a personal data breach in respect of Customer Personal Data processed by Tib Finance as processor pursuant to clause 2.1(i)(c) of this DPA.

“Privacy Law(s)” means data protection, privacy, confidentiality or security laws or regulation, including, but not limited to, European Privacy Law, US Federal or state law (including  California, Virginia, Colorado, Connecticut, Utah, Texas, Florida, Oregon, Montana, Iowa, Delaware, Tennessee, Indiana and others)  as applicable to the processing of personal data under the Agreement.

“Standard Contractual Clauses” or “SCCs” means:

(i)the EU SCCs for Merchant Restricted Transfers made by the Merchant to Tib Finance in respect of European Personal Data, to the extent European Privacy Laws of the EEA apply to the Merchant’s processing when making that transfer;

(ii)the Swiss SCCs for Merchant Restricted Transfers made by the Merchant to Tib Finance in respect of European Personal Data, to the extent European Privacy Laws of Switzerland apply to the Merchant’s processing when making that transfer, and

(iii)the UK SCCs for Merchant Restricted Transfers made by the Merchant to Tib Finance in respect of European Personal Data, to the extent European Privacy Laws of the UK apply to the Merchant’s processing when making that transfer. 

“Sub-processor” means any processor engaged by Tib Finance to process Customer Personal Data.

“Swiss SCCs” means the EU SCCs, as amended by Appendix 2 of this DPA.

“UK SCCs” means the UK SCC Addendum on the basis that:

(A)Table 1 and Table 3 of the UK SCC Addendum are deemed to have been completed with the corresponding details set out in Appendix 1 to this DPA and, for the purposes of Table 1 of the UK SCC Addendum,

i.the "Start Date" is the later of the effective date of this DPA and the commencement of the Merchant Restricted Transfer (to which European Privacy Laws of the UK apply); and 

ii.the official company registration numbers (where applicable) of the parties are as set out in the Agreement;

(B)for the purposes of Table 2 of the UK SCC Addendum, the first box is ticked and (1) the version of the "Approved EU SCCs" is the EU SCCs; and (2) the applicable modules are as set out in clause 8.2 of this DPA; and

(C)"Importer" is deemed to have been chosen for the purposes of Table 4 of the UK SCC Addendum.

“UK SCC Addendum” means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (version B.1.0) issued by the UK Information Commissioner and laid before UK Parliament in accordance with s119A of the UK Data Protection Act 2018 on 2 February 2022 as available here, as updated, amended, replaced or superseded from time to time.

1.2In addition, the terms “controller”, “processor”, “data subject”, “personal data”, “process”, “processing”, and “processor” have the meanings given to them in the GDPR.  

2.Data Processing Roles (European Privacy Law).

2.1With respect to the processing of:

(i)Customer Personal Data within the material and territorial scope of European Privacy Law:

(a)Customer Personal Data is provided by or on behalf of Merchant, as independent controller, to Tib Finance;

(b)Tib Finance receives and processes Customer Personal Data, as independent controller, for the purposes of (1) monitoring and preventing fraudulent transactions; (2) Tib Finance’s compliance with Tib Finance’s legal and regulatory obligations relating to the collection, processing, storing or retention of Customer Personal Data following a transaction; and (3) acting as merchant of record as set out in Section I.B. of the Merchant Agreement; 

(c)Merchant instructs Tib Finance, in other respects, to receive and process Customer Personal Data, as Merchant’s processor, in the provision of the Tib Finance Services to Merchant.

(ii)Merchant Personal Data within the material and territorial scope of European Privacy Law:

(a)Merchant Personal Data is provided by or on behalf of Merchant, as independent controller, to Tib Finance; and

(b)Tib Finance, as independent controller, receives and processes Merchant Personal Data including for the purposes of (1) setting up and administering Merchant’s account; (2) performing merchant underwriting; (3) conducting checks and reviews relating to KYC, anti-money laundering, identity, credit status, reference, financial status, beneficial interests, location, tax status and other related matters; (4) monitoring and preventing fraudulent transactions, and (5) Tib Finance’s compliance with Tib Finance’s legal and regulatory obligations relating to the collection, processing, storing or retention of Merchant Personal Data following a transaction. 

2.2The subject matter, duration, nature and purpose of the processing, and type of personal data and categories of data subject processed by Tib Finance as the Merchant’s processor in accordance with clause 2.1(i)(c) is set out in Appendix 1.

3.Data Processing Role (CCPA).

3.1With respect to the processing of personal information within the material and territorial scope of the CCPA:

(i)Tib Finance acts as service provider and certifies that it understands and shall comply with such contractual restrictions as may have been set by Merchant in writing;

(ii)without derogation from such contractual restrictions, Tib Finance acknowledges and confirms that it does not receive any personal information as consideration for any services or other items that Tib Finance provides to Merchant under the Agreement;

(iii)Tib Finance shall not have, derive, or exercise any rights or benefits regarding personal information processed on Merchant’s behalf, and may use and disclose personal information solely for the purposes for which such personal information was provided to it, as stipulated in the Agreement and this DPA;

(iv)Tib Finance certifies that it understands the rules, requirements and definitions of the CCPA and agrees to refrain from selling (as such term is defined in the CCPA) any personal information  processed under this Agreement, and to refrain from taking any action that would cause any transfer of personal information to or from Tib Finance under the Agreement or this DPA to qualify as “selling” such personal information under the CCPA;

(v)for the purposes of the CCPA, Tib Finance receives Customer Personal Data and Merchant Personal Data from Merchant pursuant to a business purpose, in accordance with and to fulfill its obligations under its Agreement with Merchant and in accordance with other lawful and reasonable instructions as may be provided by Merchant from time to time; and

(vi)Tib Finance agrees that it will not sell, access, disclose or use Merchant Personal Data and/or Customer Personal Data except as necessary to fulfill its obligations to Merchant under the Agreement or as necessary to carry out Merchant’s lawful and reasonable instructions to Tib Finance

4.Compliance with laws.  

4.1Each party will comply with all laws, rules, and regulations applicable to it and binding on it in the performance of this DPA, including all Privacy Laws.

4.2The Merchant is responsible for reviewing the information available from Tib Finance relating to the Tib Finance Services and data security and making an independent determination as to whether the Tib Finance Services meet its requirements and legal obligations as well as its obligations under this Agreement.

4.3Merchant is solely responsible for complying with its obligations as independent controller under European Privacy Laws in relation to Customer Personal Data and Merchant Personal Data, including the requirement to have a valid legal basis for the provision of the personal data to Tib Finance (including obtaining consent from data subjects, if applicable), to comply with data subject requests under the GDPR and to provide the relevant data subjects with the information (including any data privacy notices) required under Article 13 or 14 GDPR with regard to the provision of their personal data to Tib Finance for the purposes set out in clause 2.1. Merchant shall provide all such data subjects with a link to Tib Finance’s privacy policy (available at https://home.Tib Finance.com/privacy-policy) or other information sufficient to ensure Tib Finance’s compliance, to the extent it is a controller, with its obligations under Article 14 GDPR. 

4.4The Merchant shall ensure that the processing by Tib Finance of the Customer Personal Data as processor or otherwise in accordance with its instructions and the Merchant Personal Data does not cause or result in Tib Finance or the Merchant breaching any laws, rules or regulations (including Privacy Laws). 

5.Tib Finance Processing Obligations. 

5.1Tib Finance shall, to the extent it acts as processor of Merchant in the processing of Customer Personal Data in accordance with clause 2.1(i)(c): 

(i)only process Customer Personal Data on behalf of Merchant and in accordance with Merchant’s written instructions set out in the Agreement and this DPA, unless required to do otherwise by applicable law to which Tib Finance is subject; in such a case, Tib Finance shall inform the Merchant of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest. 

(ii)ensure that persons authorised by Tib Finance to process Customer Personal Data are subject to a binding duty of confidentiality;

(iii)take steps to ensure that any natural person acting under Tib Finance’s authority who has access to Customer Personal Data does not process them except on instructions from Tib Finance, unless he or she is required to do so by applicable law.

(iv)implement the technical and organisational security measures set out in Appendix I in respect of the Customer Personal Data;

(v)provide reasonable assistance, at Merchant’s expense, to Merchant to assist the Merchant complying with its obligations pursuant to Articles 32 to 36 of the GDPR, taking into account the nature of the processing and the information available to Tib Finance;

(vi)upon request by Merchant and at its expenses, provide reasonable assistance to Merchant, by appropriate technical and organisational measures, insofar as this is reasonably possible, to assist Merchant in the fulfilment of its obligations to respond to requests for exercising data subject rights under Chapter III of the GDPR, taking into account the nature of the processing;

(vii)subject to reasonable notice, enable Merchant to access and review up-to-date security certifications, attestations, reports or extracts of them from independent bodies relating to compliance with the security requirements of this DPA and, if necessary, make available other information necessary to demonstrate compliance with the obligations laid down in Article 28 GDPR;

(viii)provide Merchant an opportunity to conduct a security audit of Tib Finance’s security program and systems and procedures that are applicable to the services provided by Tib Finance to Merchant subject to Tib Finance’s confidentiality agreement. Audits will occur at most annually or following notice of a Personal Data Breach. Alternatively, Merchant may request in writing a copy of the most recent audit of such services conducted on behalf of Tib Finance by an independent third party security professional at Merchant’s selection and expense. Merchant shall promptly provide a copy of such audit report to Tib Finance without charge. If any such audit reveals any vulnerability, Tib Finance shall take reasonable steps to correct such vulnerability at its sole cost and expense;

(ix)to the extent required to notify Merchant of a Personal Data Breach under Privacy Laws, notify Merchant of any Personal Data Breach within 48 hours of discovery and provide Merchant with the information set out in Article 33(3) GDPR – where it is not possible to provide the information at the same time, Tib Finance may provide it in phases without undue further delay; and

(x)subject to Tib Finance’s rights and obligations under this Agreement (including this DPA), at Merchant’s choice, delete or return all Customer Personal Data, and delete existing copies held by Tib Finance, unless Tib Finance is required or authorised by applicable law (e.g. for the establishment, exercise or defence of legal claims, until time barred) to store Customer Personal Data for a longer period (provided that any deletion will take place as soon as reasonably practical based upon Tib Finance’s next deletion run which is normally every thirty days, and may be implemented by rendering the Customer Personal Data no longer personal data). 

5.2All documentation provided by Tib Finance, including any response to a security or other questionnaire, is Tib Finance’s confidential information.

6.Sub-processing. 

6.1Merchant confirms that Tib Finance has a general authorisation to use Sub-processors in the performance of the Tib Finance Services. Tib Finance maintains an up-to-date list of its Sub-processors used for processing under this Agreement at https://home.Tib Finance.com/legal/Tib FinanceDPASubprocessors.

6.2Merchant must subscribe to receive notifications of additional or changes to Sub-processors by emailing DPAList@Tib Finance.com with a request to subscribe to the DPA Sub-processor list.  Tib Finance shall notify Merchant of any additions or changes of Sub-processors within 7 days prior to such changes taking effect by email to the email which Merchant subscribed by emailing DPAList@Tib Finance.com. Merchant shall have the opportunity to object to the engagement of new Sub-processors within 30 days of the issue of such notice. The objection must be based on reasonable legitimate grounds such as where the Sub-processor presents significant data protection risks for the protection of Customer Personal Data. If the parties are unable to resolve such objection, then either party may terminate the Agreement on providing 30 days’ written notice without penalty.

6.3Tib Finance will enter into a written agreement with each Sub-processor that imposes on that Sub-processor the same obligations, in functional terms, as those imposed on Tib Finance under this DPA. If a Sub-processor fails to fulfill its data protection obligations under that agreement, Tib Finance will remain liable to you for the acts and omissions of its Sub-processor to the same extent Tib Finance would be liable if performing the relevant services directly under this DPA.

7.Liability. 

Tib Finance’s liability under or in connection with this DPA, including under the DPF, SCCs, is subject to the exclusions and limitations on liability contained in the Agreement. In no event does Tib Finance limit or exclude its liability towards data subjects or competent data protection authorities in respect of this DPA, DPF or SCCs.

8.Cross-Border Transfers of Merchant Personal Data and Customer Data.

8.1Merchant acknowledges that Tib Finance may transfer or onward transfer Merchant Personal Data and Customer Personal Data to the United States under the DPF, and to a country not recognised under European Privacy Laws as having an adequate level of protection pursuant to Standard Contractual Clauses or using another means recognised by European Privacy Law.

8.2Subject to clause 8.3, Tib Finance and the Merchant agree with each other to be bound by, observe, comply with and perform the Standard Contractual Clauses (as though the Merchant is the data exporter and Tib Finance is the data importer) in respect of Merchant Restricted Transfers as if the Standard Contractual Clauses were set out in, and incorporated into, this DPA. For this purpose, and without limiting or affecting the foregoing:

(i)with respect to Merchant Restricted Transfers of Customer Personal Data and Merchant Personal Data which constitute, in accordance with clause 2 of this DPA, a transfer by the Merchant as controller to Tib Finance as controller, module one of the Standard Contractual Clauses apply;  

(ii)with respect to Merchant Restricted Transfers of Customer Personal Data which constitute, in

accordance with clause 2 of this DPA, a transfer by the Merchant as controller to Tib Finance as processor, module two of the Standard Contractual Clauses apply; and

(iii)the Merchant and Tib Finance are deemed to have signed Annex I of the Standard Contractual Clauses on the occurrence of a Merchant Restricted Transfer by the Merchant.  

8.3The Standard Contractual Clauses shall not apply as between Merchant and Tib Finance to the extent Tib Finance has adopted an alternative recognised compliance standard for the lawful transfer of European Personal Data outside the European Economic Area, EU and/or UK/and or Switzerland in accordance with applicable European Privacy Law, such as Binding Corporate Rules. European Personal Data may also be transferred to the United States to companies that self-certify under the EU-US Data Privacy Framework and/or the UKDPF Extension and/or Swiss-US DPF, without any further safeguard being required.

8.4Tib Finance and Merchant agree at the request of either of them to confirm that the Standard Contractual Clauses are binding upon it and/or to execute a copy of the Standard Contractual Clauses to confirm their binding nature. 

8.5If the Merchant and Tib Finance previously entered into: 

(i)the European Commission standard contractual clauses adopted under Decision 2001/497/EC or Decision 2010/87/EU, the Merchant and Tib Finance agree that such standard contractual clauses are hereby terminated with respect to European Personal Data and that any European Personal Data previously transferred under such standard contractual clauses does not have to be returned  or deleted due to their termination but instead shall be deemed to have been transferred prospectively under the Standard Contractual Clauses (but without limiting or affecting any accrued rights, obligations, liabilities or obligations that survive the termination); and

(ii)the EU SCCs in respect of Merchant Restricted Transfers made by the Merchant to Tib Finance in respect of European Personal Data, to the extent European Privacy Laws of the UK applied to the Merchant’s processing when making that transfer (“UK Personal Data”), the Merchant and Tib Finance agree that such EU SCCs are hereby terminated with respect only to UK Personal Data and that any UK Personal Data previously transferred under such EU SCCs does not have to be returned  or deleted due to their termination in such respect but instead shall be deemed to have been transferred under the UK SCCs (but without limiting or affecting any accrued rights, obligations, liabilities or obligations that survive the termination in such respect).

8.6Tib Finance Inc. is currently certified  with the EU-US Data Privacy Framework, the UK DPF Extension and Swiss-US DPF as recorded by the US Department of Commerce regarding the collection, use, and retention of personal information transferred to the United States pursuant to the DPF.  Tib Finance Inc. has certified that it adheres to the Data Privacy Framework Principles with respect to such data and  relies on the DPF as a method of transferring personal data to third countries under European Privacy Law as defined herein. Tib Finance, upon request by Merchant and at its expense, will, taking into account the nature of the processing, assist Merchant, in Merchant’s capacity as controller, in responding to individuals exercising their rights under the Data Privacy Framework Principles.  

9.Jurisdiction and Law. The parties to this DPA submit to the choice of jurisdiction and choice of law stipulated in the Agreement with respect to any disputes or claims howsoever arising under this DPA,

including disputes regarding its existence, validity or termination or the consequences of its nullity.  This does not limit or affect the governing law or jurisdiction of the Standard Contractual Clauses.

10.Variations. Tib Finance may propose variations to this DPA which it reasonably considers to be necessary to address the requirements of any relevant Privacy Law including new laws, rules and regulations that may be promulgated in the future.

11.Severance.  Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.

12.Equivalent Provisions. References in this DPA to a provision of the GDPR includes, to the extent the processing of European Personal Data is subject to European Privacy Laws other than the GDPR, the equivalent provision under that other applicable European Privacy Law.

Appendix 1

SECTION A:

A.List of Parties

Data exporter: Merchant.

Activities relevant to processing: Operating as a merchant.

Role: controller

Data importer: Tib Finance.  Tib Finance’s name, address and contact details are as set out in the Agreement. 

Activities relevant to processing: Provision of the services under the Agreement.  

-With respect to module 1 (where applicable in accordance with clause 8.2(i) of the DPA), this includes underwriting and due diligence reviews of merchants in accordance with payment/financial industry standard legal requirements, and securing financial records of transactions and the other activities described in clause 2 of the DPA for which Tib Finance is a controller.

-With respect to module 2 (where applicable in accordance with clause 8.2(ii)of the DPA), this includes the processing of online payment transactions in order to provide safe secure payment services to merchants, market place vendors and their customers and the other activities described in clause 2 of the DPA for which Tib Finance is a processor.

Role: 

-controller (where module 1 applies in accordance with clause 8.2(i) of the DPA)

-processor (where module 2 applies in accordance with clause 8.2(ii) of the DPA)

B.Description of Transfer

Categories of Data Subject:

-With respect to module 1 (where applicable in accordance with clause  8.2(i)  of the DPA): Customers of Merchant and personnel of Merchant.

-With respect to module 2 (where applicable in accordance with clause  8.2(ii) of the DPA): Customers of Merchant.

Categories / Type of Personal Data:

With respect to module 1 (where applicable in accordance with clause 8.2(i) of the DPA):

-Other data: ID documents, passport data, financial records, security certificates, professional qualifications, bank/credit/personal references, background and credit checks, required to conduct merchant due diligence. 

With respect to module 2 (where applicable in accordance with clause 8.2(ii)of the DPA):

-Contact details (name, address, e-mail address, phone and fax contact details and associated local time zone information), and other data points required by payment card networks to fulfil a transaction;

-IT systems information (user ID and password, computer name, domain name, IP address, location, and software usage pattern tracking information i.e. cookies); and

-Where applicable financial, payment data such as card numbers

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into  consideration  the  nature  of  the  data  and  the  risks  involved,  such  as  for  instance  strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

Not applicable. 

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).  With respect to module 1 (where applicable in accordance with clause 8.2(i) of the DPA):

-Due diligence checks are periodic. Transaction fraud checks generally take place each time there is a transaction.  

With respect to module 2 (where applicable in accordance with clause 8.2(ii) of the DPA):

-Payment transactions are continuing.  

Nature of the Processing 

With respect to module 1 (where applicable in accordance with clause 8.2(i)of the DPA):

-The personal data will be subject to storage, audit and review by payment processors, acquirers, Card Associations and regulatory authorities and any other activities described in clause 2 of the DPA for which Tib Finance is a controller. Transaction fraud checks are undertaken for all card transactions.  

With respect to module 2 (where applicable in accordance with clause 8.2(ii) of the DPA):

-The personal data transferred will be subject to the processing operations in order for the Tib Finance to provide the services requested by the Merchant and any other activities described in clause 2 of the DPA for which Tib Finance is a processor. This includes payment processing.  

Purpose(s) of the data transfer and further processing:

With respect to module 1 (where applicable in accordance with clause 8.2(i) of the DPA):

-The purpose of the data transfer and further processing is so that Tib Finance can conduct transaction records, fraud and money laundering prevention services and other activities described in clause 2.1 of the DPA for which Tib Finance is a controller.  

With respect to module 2 (where applicable in accordance with clause 8.2(ii) of the DPA):

-The purpose of the data transfer and further processing is so that Tib Finance can as requested by the Merchant from time to time, perform payment transaction fulfilment and other activities described in clause 2.1 of the DPA for which Tib Finance is a processor.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period 

With respect to module 1 and 2 (where applicable in accordance with clauses 8.2(i) and 8.2(ii) respectively of the DPA):

-The maximum data retention periods are determined by the DPA, as updated from time to time, and applicable data retention policies of Tib Finance and law.

For  transfers  to  (sub-)  processors,  also  specify  subject  matter,  nature  and  duration  of  the  processing.   With respect to module 2 (where applicable in accordance with clause 8.2(ii) of the DPA):

-Subject matter of Processing: See purpose and nature above.

-Nature of Processing: See nature above.

-Duration of Processing:

The processing of the personal data shall take place as long as the Agreement remains in force. Tib Finance will retain the personal data as per the data retention period(s) described above, under the heading “The period for which the personal data will be retained or, if that is not possible, the criteria used to determine that period”.

Persons or Parties Exposed to Merchant Personal Data:

Merchant’s and Tib Finance’s personnel, employees, contractors

C.Competent Supervisory Authority

Identify the competent supervisory authority/ies in accordance with Clause 13: 

With respect to module 1 and 2 (where applicable in accordance with clauses 8.2(i) and 8.2(ii) respectively of the DPA):

-See the definition of the applicable Standard Contractual Clauses in the DPA.

SECTION B:

Technical and organizational security measures including technical and organisational measures to ensure the security of the data

Description of the technical and organisational measures implemented by Tib Finance (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

With respect to module 1 and 2 (where applicable in accordance with clauses 8.2(i) and 8.2(ii) respectively of the DPA):

Tib Finance maintains an information security program focused on the security and integrity of personal data. Tib Finance’s information security program includes administrative, technical and operational controls appropriate for the size of its business, the types of information it processes and the relative level of risk such information poses.

1.Personnel Security. 

(a)As part of the hiring process, all employees undergo criminal background (US) and reference checks, sign NDAs committing them to protecting confidential information (including Customer Personal Data), agree to reasonable use policies for personal data, and sign off on the Tib Finance Information Security Policy

(b)During employment, continued security awareness training and education are provided annually.

(c)Following any severing of the work relationship, the employee must surrender all assets and all access is revoked.

2.Physical Security and Hosting Environment

(a)All personal data is secured and access is limited to only the systems and employees that need access to facilitate providing services to the customer.

(b)The production servers are hosted at SSAE 16-audited facilities. Visual confirmation and strict signin procedures are executed by trained security personnel that have passed criminal background checks. Data center access is also restricted with key cards, photo ID verification and is staffed 24/7/365. The site is also monitored and recorded via color, high-resolution digital video cameras. Neither the lessor of the servers nor the facility managers have login access to the servers.

(c)All Tib Finance offices including the corporate headquarters in Waltham are protected by badge access and staffed by security personnel 24/7.

3.Application Security and Access Control

(a)System Administration: All access is authenticated via userID/password, sensitive systems/services are also protected with an additional 2FA authentication. All access is logged and those logs are replicated and preserved.

(b)Personal data

i.Employees that need to access personal data to do their jobs may only do so under the following conditions:

1.There is no other way accomplish the task

2.Only the minimal amount of data required is accessed

3.Any captured information is destroyed once no longer needed

ii.Access is granted on a per-user basis, based on job role and requirements, and only to the appropriate level of personal data in accordance with least privilege. User authentication is controlled using multiple security factors including username, password, and 2 Factor authentication. Passwords are safeguarded and never stored in plain text, either at rest or in transit. 

(c)Source code static scanning is performed on the application source code

(d)Web Application Firewall is deployed in Production to defend against application attacks

4.Information Security / Incident Management

(a)For Production systems, the operating system is Linux with all ports but 443 are closed to the internet at large. Critical patches are automatically applied while high and medium severity patches are applied monthly and quarterly.

(b)Vulnerability digests are monitored daily for new issues in any software Tib Finance relies on. 

(c)Surfaces are minimized by locking down all ports accessible outside of the private network. 

(d)In the event of an incident, there is an on-call engineer at all times. The process for triage, escalation, and communication are clear and documented internally. 

(e)Tib Finance maintains security incident management policies and procedures. 

(f)In addition, periodic penetration tests are performed against the Production and Corporate environment to minimize the risk of exposure. Internal security reviews are conducted for all new features. A particular emphasis is placed on the OWASP Top 10. 

5.Data Protection and Encryption

(a)Https is required for all access to production services and applications that have access to Customer Personal Data

(b)All PII and Card data in Production is encrypted at rest

(c)Hard drives are encrypted on all endpoints

6.Corporate Infrastructure Security

(a)Anti-Virus/Anti-Malware: All workstations are equipped with centrally-managed anti-malware and anti-virus software

(b)DDOS mitigation is setup “always-on” for our services in Production 

(c)Next Generation Security agent is deployed on every desktop/laptop

(d)Anti-phishing and anti-malware email filter is applied and all emails are filter 

(e)Data Leak Protection software is applied on every desktop

(f)Wireless Networks: Wi-Fi networks is completely segregated from the corporate network.

(g)Automatic Updates: All Windows workstations are configured using Active Directory based Group Policies to automatically download and install security and related updates released by Microsoft.

(h)User Account Password Complexity: Passwords used for common login services such as Active Directory and Google Apps for Work are required to meet complexity requirements, where available, required to be changed on a regular basis.

(i)An Intrusion Prevention System is deployed in production and corporate networks 

(j)Host Intrusion Detection Software is deployed on every production server to alert on system file changes

(k)Data Leak protection is deployed in email and SharePoint sites

(l)2 Factor Authentication is deployed to protect every sensitive server/IT asset

(m)The Production network is segmented into VLANs for further isolation and protection of data and servers

(n)A Security information and event management system (SIEM) is deployed to monitor and manage security events across the organization

(o)Tib Finance is level 1 PCI compliant which requires the following: 

i.Annual Report on Compliance (“ROC”) by Qualified Security Assessor (“QSA”) ii.Annual onsite audit and assessment by the QSA iii.Quarterly network scan by an Approved Scan Vendor  (“ASV”) iv.Proper encryption of card data at rest and in transmission

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a subprocessor, to the data exporter

With respect to module 2 (where applicable in accordance with clause 8.2(ii) of the DPA):

- The scope and the extent of the assistance to be provided by Tib Finance in accordance with Clause 10(b) shall be such as is necessary to enable Tib Finance to comply with its obligations of assistance with respect to data subjects rights owed to Merchant under the DPA. 

Appendix 2

Swiss Addendum to the EU Commission Standard Contractual Clauses

Interpretation of this Addendum

1.In this Appendix, terms used in the DPA have the same meaning in this Addendum. In addition, the following terms have the following meanings:

                  This Addendum                            This Appendix 

                  Swiss Data Protection Laws       All European Privacy Laws in Switzerland, including the FADP.

                  FADP                                                  The Federal Act on Data Protection of 19 June 1992 (SR 235.1;

FADP) and the revised version of the Federal Act of Data Protection of 25 September 2020, scheduled to come into force on 1 January 2023 (the “Revised FADP”), including any further revisions or updates from time to time.

2.This Addendum shall be read and interpreted in the light of the provisions of Swiss Data Protection Laws.

3.This Addendum shall not be interpreted in a way that conflicts with rights and obligations provided for in Swiss Data Protection Laws.

Hierarchy

4.In the event of a conflict or inconsistency between this Addendum and the provisions of the EU SCCs or other related agreements between the parties, the provisions which provide the most protection to data subjects shall prevail.

Incorporation of the Clauses

5.This Addendum amends the EU SCCs which are deemed to be amended to the extent necessary so they operate:

a.for transfers made by the Merchant to Tib Finance, to the extent that Swiss Data Protection Laws apply to the Merchant’s processing when making that transfer; and

b.to provide appropriate safeguards for the transfers in accordance with Article 6 of the FADP (or Article 16 of the Revised FADP).

6.The amendments required by paragraph 6 above comprise:

a.references to the “EU SCCs” means the EU SCCs as amended by this Addendum;

b.references to “Regulation (EU) 2016/679” or “that Regulation” are replaced by “Swiss Data Protection Laws” and references to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of Swiss Data Protection Laws. 

c.references to Regulation (EU) 2018/1725 are removed;

d.references to the “Union”, “EU” and “EU Member State”  shall not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (Switzerland) 

e.Clause 13(a) and Part C of Annex II are not used; the “competent supervisory authority” is the Federal Data Protection and Information Commissioner;

f.references to ‘personal data’ extends to data of legal entities until the entry into force of the Revised FADP. 

 

EXHIBIT 11                                               Alipay Terms of Service

Last Updated: October 2018

These Alipay Terms of Services apply if you elect to offer the Alipay software system and service for the making and collection of payments for products and services (“Alipay Services”) to your Customers via Tib Finance. The Alipay Services are made available to you by Alipay.com Co., Ltd. (“Alipay”), and include the Alipay Wallet, and in these Alipay Terms of Services your Customers that use the Alipay Services are referred to as “Alipay Users”.

1.Use of Alipay Services.

If you offer the Alipay Services to your Customers, you may not require a minimum or maximum purchase amount with respect to the Customers’ use of the Alipay Services.

2.Products and Services.

You acknowledge that Alipay may not provide Alipay Services with respect to any transaction which is prohibited by applicable Laws or violates Alipay’s internal policies, or which will result in Alipay being considered to have breached any applicable Laws. Accordingly, you must not sell products or services through the Alipay Services that contain articles prohibited or restricted from being sold to Alipay Users under any applicable Laws, including, without limitation, the products and services prohibited by Alipay. Please contact us for more information about products and services prohibited by Alipay.

You must provide Tib Finance with information about your products and services as may be reasonably requested by Tib Finance or Alipay from time to time, and you must ensure that no transaction submitted through the Alipay Services is for the purchase of any item prohibited by Alipay or Tib Finance. Alipay and Tib Finance will have the right to refuse to provide the Alipay Services with respect to any such transaction. To the best of your knowledge, the products or services that you sell do not infringe upon any third party’s rights and interests, including, without limitation, intellectual property rights and proprietary rights. If you become aware that any of your products or services infringes upon any third party’s rights and interests, you must notify Tib Finance and immediately cease selling such products or services. If you continue to sell infringing goods or services, Tib Finance may immediately terminate provision of the Alipay Services to you.

3.Alipay intellectual property; brand and logo; publicity.

Alipay owns all rights in and to the Alipay Services, including, without limitation, the information described on the Alipay website. Except as expressly stated to the contrary, nothing in these Alipay Terms of Service grants, or may be construed to grant, to you any license, ownership or other rights of any kind in any Alipay content, technology or intellectual property.

You must display the brand or logo of Alipay during checkout for the sale of products or services in parity with other payment methods. You may not use Alipay’s logo or proprietary content for any purpose other than to indicate your acceptance of Alipay as a form of payment, unless otherwise authorized by Alipay. You must present a truthful description of the Alipay Services in accordance with Alipay’s guidance, and direct Alipay Users to access the Alipay Services using their Alipay Wallet to make the relevant payments.

You may not issue any press release or make any public announcement pertaining to Alipay or the Alipay Services without the prior written consent of Alipay.

4.Business purposes.

You may only use the Alipay Services for your own account and with respect to the products and/or services that you have told Tib Finance about. 5. Modification of Alipay Services.

Alipay may modify the Alipay Services from time to time and require you to take steps to reduce the risk of unauthorized Transactions.

6.Alipay User complaints; disputes.

You are solely liable for any complaints by Alipay Users regarding your products and/or services. In the event that Alipay or Tib Finance becomes aware of complaints by an Alipay User, you will work in good faith to resolve such complaint.

If an Alipay User refuses to pay for a product or service on the basis that there has been an unauthorized Transaction, you must provide documentary evidence, as requested by Alipay and Tib Finance, that you have properly delivered the products or provided the services in accordance with such underlying transaction order. Such evidence may include, but is not limited to logistics certificates, shipping certificates, receipts, addresses, name and contact information of the recipient; as well as product names and prices. Based upon the provided evidence, Tib Finance and Alipay will determine whether you have sufficiently demonstrated that you properly delivered the products or provided the services.

7.AML requirements.

Alipay is subject to anti-money laundering, countering the financing of terrorism and sanctions (“AML”) laws and regulations. In accordance with its AML and anti-fraud practices, Alipay may reject or suspend suspicious transactions and payments, restrict individuals involved in suspicious transactions from using the Alipay Services, and impose other reasonable limitations and controls on your and Alipay Users’ use of the Alipay Service sufficient to meet Alipay’s AML compliance obligations. Alipay may, for the purposes of complying with applicable suspicious transaction reporting and tipping-off laws and regulations, notify suspicious transactions to the relevant authorities with jurisdiction over Alipay or relevant affiliates of Alipay.

Within a reasonable time after request from Alipay or Tib Finance, and only to the extent permitted by applicable Law, you must, at your own cost, provide information and transaction records to permit Alipay to investigate an actual or suspected violation by an Alipay User of the AML laws and regulations applicable to Alipay; except that the information provided shall be limited only to the information required to complete Alipay’s investigation. 8. Prohibited product/business list

1.	Illegal political audio visual products and publications
2.	Illegal political program channels
3.	State secret documents and information
4.	Pornographic and vulgar audio visual products, channels and publications
5.	Pornographic and vulgar erotic services
6.	Gambling devices and accessories
7.	Lottery
8.	Gambling service
9.	Narcotics and related accessories
10.	Weapons of all types (including daggers, firearms and accessories), replica  weapons, ammunitions and explosives)
11.	Military or police equipment
12.	Illegally obtained proceeds or properties as result of crime
13.	Poisonous or hazardous chemicals prohibited by Applicable Law and/or the laws of the People's Republic of China
14.	Batons and electric batons
15.	Lock picking tools and accessories
16.	Anesthetic, psychotropic or prescription medicine prohibited by the People's Republic of China; illegal unregistered medicine
17.	Fetal gender determination
18.	Aphrodisiac
19.	Medical services, including medical consulting, hypnotherapy, plastic surgery
20.	Hacking services or accessories
21.	Malwares
22.	Illegal publication of certificates issuing or carving of stamps
23.	Crowd funding
24.	Video chatting services
25.	All religious websites, publication or accessories
26.	Online cemeteries and ancestor worshipping
27.	Sales of personal information (e.g. identity card information)
28.	Espionage equipment and accessories
29.	Services or products that infringe on personal privacy (e.g. online activity monitoring)
30.	Pyramid schemes and multi-level marketing
31.	Gold investment
32.	Cash disbursement from credit funding sources (e.g. credit cards)
33.	Counterfeit currency
34.	Illegal sale of financial information (e.g. bank accounts, bank cards)
35.	Stock and securities
36.	Mutual Funds
37.	Insurance products and platforms
38.	Financial products and services
39.	Rebate or cashback services
40.	Software or products related to trading of financial products and information
41.	Single-purpose prepaid cards (including gift cards and other stored value cards)
42.	Illegal or un-registered fund-raising activities
43.	Foreign exchange services
44.	Peer to peer (P2P) lending services
45.	Payment by instalments service
46.	Trading in invoices issued within the Peoples’ Republic of China
47.	Trading or sale of virtual currencies (e.g. Bitcoin, Litecoin)
48.	Satellites and antennas
49.	Archaeological and cultural relics
50.	Trading or distribution of currency (both RMB and foreign currencies)
51.	Counterfeit or replica food products
52.	Online sale of tobaccos and cigarettes
53.	Fireworks and firecrackers
54.	Crude oil
55.	Human organs
56.	Surrogacy services
57.	Services to facilitate plagiarism and examination fraud
58.	Protected species
59.	Smuggled goods
60.	Sales of distribution of event tickets without license (e.g. Olympic Games or World Expo tickets)
61.	Seeds
62.	Real estates
63.	Charitable Organizations
64.	Auction sites and services
65.	Pawn services
66.	Lucky draw
67.	Sale of animals, plants or products with contagious and hazardous diseases
68.	Sale of animals, plants or products originating from areas declared with an epidemic outbreak of contagious diseases
69.	Services or products facilitating unlawful public gathering

As prohibited by Chinese law or other applicable law, Illegal political products, publications, programs and channels (e.g. products, video, television or radio programs, and publications supporting political organizations, activities, or propaganda prohibited by Chinese law or other applicable law)

State secret documents and information

Software or services that may otherwise jeopardize the reputation or goodwill of Alipay and its affiliates

EXHIBIT 12 Use of ACI Services

Should Merchant use the services made available through Tib Finance by ACI Worldwide Corporation and its Affiliates including ACI Worldwide (Germany) Gmbh, (“ACI”) the following additional required terms shall apply as between Merchant and ACI: 

1.Definitions 

“Application Services” means the services to be provided by ACI through Tib Finance that may be used by the Merchant. 

2.No Warranties

ACI MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR

IMPLIED, OR ORAL OR WRITTEN, TO THE MERCHANT OR ANY THIRD PARTY WITH RESPECT

TO ANY APPLICATION SERVICES PROVIDED HEREUNDER.  WITHOUT LIMITING THE

FOREGOING, IN RESPECT OF ACI, ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY AGAINST INFRINGEMENT, AND IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.

3.LIMITATION OF LIABILITY

IN NO EVENT SHALL ACI BE LIABLE TO MERCHANT OR ANY THIRD PARTY FOR DIRECT, SPECIAL,

CONSEQUENTIAL (INCLUDING LOST PROFITS AS CONSEQUENTIAL DAMAGES), EXEMPLARY,

PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND

EXPENSES) IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF, OR INABILITY TO USE, THE APPLICATION SERVICES OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS

AGREEMENT OR ANY (INCLUDING, BUT NOT LIMITED TO), BREACH OR FAILURE OF EXPRESS OR

IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT

LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY OR

PROPERTY DAMAGE WHERE THE LAW MAY REQUIRE SUCH LIABILITY AND WHETHER OR NOT SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.

4.Confidentiality 

4.1Each Party receiving Confidential Information (the “Receiving Party”) shall use the Confidential Information disclosed by another Party (the “Disclosing Party”) solely for the purposes of performing its obligations under the Agreement and this Exhibit and shall disclose such Confidential Information only as specifically authorized in Section 4.3 below. Each Party shall exercise at least the same degree of care to carry out its obligations under this Section 4 and to protect the confidentiality of the other Parties’ Confidential Information which it exercises to protect the confidentiality of its own similar Confidential Information, but in no event less than reasonable care.  Receiving Party shall not remove any confidentiality, copyright, or similar notices or legends from the Confidential Information of the Disclosing Party.  

4.2Restrictions.  Notwithstanding Section 4.1, Receiving Party shall not disclose Confidential Information of Disclosing Party, except to its employees, consultants or any third party having a legitimate business purpose with respect to the Agreement and having a need to know such Confidential Information.  Prior to permitting access to the Confidential Information, Receiving Party shall inform such employees, consultants or any third party of the confidential nature of the Confidential Information and shall execute written agreements with its consultants or other third parties in form and substance reasonably acceptable to the Disclosing Party sufficient to enable it to comply with all the provisions of this Section.  Such Receiving Party shall be responsible for any breach by its employees, consultants or third parties of the obligations of Receiving Party set forth in this Section 4.

4.3Breach of Confidentiality.  If any employee, officer, director, consultant, or agent of Receiving Party violates or threatens to violate the provisions of this Section 4, or if any third party obtains any Confidential Information through Receiving Party’s breach of its obligations under this Section 4, then such Receiving Party shall take, at its own expense, all actions that may be required to remedy such violation, recover such Confidential Information and to prevent further dissemination or use of such Confidential Information, including, but not limited to, legal actions for seizure and injunctive relief, to the extent available under applicable law.  If Receiving Party fails to take such actions in a timely and adequate manner, then Disclosing Party or its designee may take such actions in its own name or Receiving Party’s name and at Receiving Party’s expense.  Each Party acknowledges that the other Party’s

Confidential Information contains valuable trade secrets and proprietary information of such Party, that any actual or threatened breach of this Section 4 shall constitute immediate, irreparable harm to such Party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.  

4.4Exclusions.  Notwithstanding anything to the contrary in this Section 4, Confidential Information shall not include information which:  (i) was already known to Receiving Party at the time of disclosure by Disclosing Party, and Receiving Party was under no obligation of confidentiality with respect to such information; (ii) is disclosed to Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of Receiving Party has become, generally available to the public; or (iv) is independently developed by Receiving Party without access to, or use of, Disclosing Party’s Confidential Information.  In addition, Receiving Party shall be allowed to disclose Confidential Information of Disclosing Party to the extent that such disclosure is (a) approved in writing by Disclosing Party, (b) necessary for Receiving Party to enforce its rights under this Master Agreement, Schedules, Exhibits and Change Order Request Forms in connection with a legal proceeding; or (c) required by law or by the order of a court or similar judicial or administrative body, provided that, to the extent it is legally permitted to do so, Receiving Party notifies Disclosing Party of such required disclosure promptly and in writing and cooperates with Disclosing Party at Disclosing Party’s reasonable request and expense in any lawful action to contest or limit the scope of such required disclosure.   

5.0INTELLECTUAL PROPERTY RIGHTS 

5.1Exclusive Property.  Merchant acknowledges that the Confidential Information of ACI, as well as all related trademarks, logos, other names or markings identifying the Confidential Information, and other Intellectual Property Rights of ACI, are and shall remain the exclusive property of ACI, whether or not protected under applicable intellectual or property laws.  Without limiting the generality of the preceding sentence, Merchant shall not acquire any Intellectual Property Rights in or to any software, documentation, or work processes of ACI.  

5.2Ownership.  ACI and/or its licensors shall own all Intellectual Property Rights in the ACI services used by Merchant and its customers (including the APIs, all related materials). If, by operation of law, Merchant is deemed to possess any rights in such items, then Merchant hereby assigns such Intellectual Property Rights to ACI or its licensors.  To the extent Merchant’s rights are inalienable under applicable law, Merchant hereby waives such rights and, if such waiver is deemed invalid, grants to ACI, its licensors and their designees the exclusive, irrevocable, perpetual, worldwide, royalty free right to use, market, modify and grant licenses to such items without identifying Merchant or seeking Merchant’s consent. Merchant agrees not to take any action that interferes with said Intellectual Proprietary Rights of ACI or attempt to copyright or patent any portion of ACI’s property or register or attempt to register any trademark, service mark, trade name, or company name which is identical or confusingly similar to said marks, names, or markings.

6.Compliance with Export Controls.  Merchant will not export, re-export, divert, transfer, or disclose, directly or indirectly, or allow the use of, any ACI services or documentation, or any direct product thereof in violation of applicable United States export control requirements. The obligations of this Section 6 will survive termination of the Agreement.

7.Assignment.  Merchant may not assign, pledge or otherwise transfer (whether by operation of law, acquisition or sale of stock or assets, merger, consolidation, transfer of control or otherwise) this Agreement or any rights or obligations under this Agreement so far as it relate to ACI,  to any competitor of ACI without the prior written consent of ACI.  Any attempt to assign the Agreement Schedule other than as permitted above shall be void. 

8.Third Party Beneficiary to the Agreement. ACI is a direct and intended third party beneficiary to the Agreement between Tib Finance and Merchant, and may enforce its rights directly against Merchant without objection based on lack of privity or any similar claim. 

EXHIBIT 13

                                      ACCOUNTS RECEIVABLE AUTOMATION SERVICES SOFTWARE

                                                             TERMS & CONDITIONS

1.SAAS SERVICES AND SUPPORT

1.1.Subject to the terms of these Terms & Conditions (“T&Cs”), Tib Finance Inc. (“Tib Finance”) will use commercially reasonable efforts to provide Merchant the accounts receivable and revenue life cycle automation services (“Services”). As part of the registration process, Merchant will identify an administrative user name and password for Merchant’s Tib Finance account. Tib Finance reserves the right to refuse registration of or cancel passwords it deems inappropriate.

1.2.Subject to the terms hereof, Tib Finance will provide Merchant with reasonable technical support services in accordance with Tib Finance’s standard practice.

1.3.Unless any customization of, or addition of any functionality in the Services is expressly agreed upon in writing, Merchant shall be entitled to only use such version of the Services as is current on the Effective Date of the Agreement. 

2.RESTRICTIONS AND RESPONSIBILITIES

2.1.Merchant will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt  to  discover  the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Tib Finance or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

2.2.Merchant shall be responsible for obtaining  and  maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating  systems, networking, web servers and the like (collectively, “Equipment”). Merchant shall also be responsible for maintaining the security of the Equipment, Merchant account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Merchant account or the Equipment with or without Merchant’s knowledge or consent.

3.CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1.Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Tib Finance includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Merchant includes non-public data provided by Merchant to Tib Finance to enable the provision of the Services

(“Merchant Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2.Merchant shall own all right, title and interest in and to the Merchant Data, as well as any data that is based on or derived from the Merchant Data and provided to Merchant as part of the Services. Tib Finance shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3.Notwithstanding anything  to  the contrary, Tib Finance  shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Merchant Data and data derived therefrom), and Tib Finance will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Tib Finance offerings, and (ii) disclose such data solely in aggregate or other deidentified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

3.4.Merchant agrees to provide a testimonial (case study) within 60 days of effective date. Tib Finance will be allowed to survey users of the service and with Merchants approval, use information provided by users for marketing purposes.  Upon execution of this agreement, Merchant agrees to allow Tib Finance full use of their logos/trademarks on marketing material and website with permission to reference them as a Merchant.

4.PAYMENT OF FEES

4.1.Merchant will pay Tib Finance the then applicable fees described in the Schedule 1 to this Agreement in accordance with the terms therein (the “Fees”). If Merchant’s use of the Services exceeds the service capacity or otherwise requires the payment of additional fees (per the terms of these T&Cs), Merchant shall be billed for such usage and Merchant agrees to pay the additional fees in the manner provided herein. Tib Finance reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Merchant (which may be sent by email). If Merchant believes that Tib Finance has billed Merchant incorrectly, Merchant must contact Tib Finance  no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Tib Finance’s Merchant support department.

4.2.Full payment for services provided in any given month must be received by Tib Finance prior or on the first day of the service. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.  Merchant shall be responsible for all taxes associated with Services other than U.S. taxes based on Tib Finance’s net income.

5.TERM AND TERMINATION

5.1.Subject to earlier termination as provided below, these T&Cs are for the term of month-to-month or yearly (“Initial Service Term”), as selected by Merchant and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination as set forth in Section 12.1 of the Agreement if the term is month-to-month, or, if the term is yearly, then at least thirty (30) days prior to the end of the then-current term. In the event an Initial Service Term is not selected or specified by Merchant, the term shall be one (1) year.

5.2.In addition to any other remedies it may have, Tib Finance may also terminate these T&Cs without notice in the case of nonpayment or if the Merchant materially breaches any of the terms or conditions of these T&Cs. In the case of this early termination the full amount for the full term is due at once and in full. Upon any termination, Tib Finance will make all Merchant Data available to Merchant for electronic retrieval for a period of thirty (30) days, but thereafter Tib Finance may, but is not obligated to, delete stored Merchant Data. All sections of these T&Cs which by their nature should survive termination will survive termination, including, without     limitation,     accrued     rights     to     payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6.WARRANTY AND DISCLAIMER

Tib Finance shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Tib Finance or by third-party providers, or because of other causes beyond Tib Finance’s reasonable control, but Tib Finance shall use reasonable efforts to provide advance notice in writing or by e-mail of any  scheduled service  disruption. HOWEVER,  TIB FINANCE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT  MAKE ANY WARRANTY AS TO  THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.

EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND  IMPLEMENTATION

SERVICES ARE PROVIDED “AS IS” AND TIB FINANCE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7.MISCELLANEOUS

If any provision of these T&Cs is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these T&Cs will otherwise remain in full force and effect and enforceable. These T&Cs is not assignable, transferable or sublicensable by Merchant except with Tib Finance’s prior written consent. Tib Finance may transfer and assign any of its rights and obligations under these T&Cs without consent. 

EXHIBIT 14

For merchants deploying Chargebacks 911 service provided by Global e-Trading, LLC., doing business as

Chargebacks 911 (hereafter “Global”)

1.Merchant shall enroll the MIDs (Merchant Account Identification Numbers) of its choosing, including necessary pertaining details (e.g., Merchant Account Descriptor and/or Business Identification Number and Card Acceptor Identifiers) into the connected payment network or card association, and elects to receive prechargeback notifications and related transaction detail from Global.

2.Prior to enrollment and continually throughout its enrollment, Merchant must grant access to its related data source; as necessary to match notifications and/or inquiries, and perform and fulfill said service.

3.Prior to enrollment, Merchant shall acknowledge and agree that participation is subject to the terms of Global’s participation agreement with said card brand association (e.g., Visa, Mastercard, American Express, Discover).

4.Merchant acknowledges that it owns and/or controls each of the MIDs hereby permitted to be enrolled for Service.

5.Merchant shall permit Global to respond to any pre-chargeback notification or inquiry with documentation, refund, or a combination of both.

6.Enrollment Fee: Merchant agrees to pay a one-time enrollment fee to be determined by Company.

7.Merchant understands that failure to comply fully with the requirements provided herein will prevent Global from providing Chargeback Prevention Services. Merchant agrees to indemnify and hold harmless Global for any losses, damages, costs, fees, interest, or other injury resulting, directly or indirectly, from Merchant’s failure to comply fully with the requirements provided herein, whether knowingly, unknowingly, intentionally, or unintentionally.

EXHIBIT 15          For Merchants engaging Tib Finance Gateway Services 

TIB FINANCE INC PAYMENT GATEWAY MERCHANT SERVICE AGREEMENT

The Tib Finance Payment Gateway Merchant Services Agreement (the “Agreement”) is a legally binding contract between you and/or your company (“Gateway Client”) and Tib Finance Inc (“Tib Finance”). The Agreement sets out the terms and conditions under which Gateway Client may utilize the Services. 

                1.Definitions

“Abandoned Account” means any inactive account through which no Transactions have been processed for a minimum of six (6) months AND for which all contact information (address, phone numbers, fax numbers, email address) and billing information (ABA routing number and bank account number and/or card number) is no longer valid. 

“Account” means a gateway identifier that is issued by Tib Finance to Gateway Client to enable Gateway Client’s use of Services hereunder. For each business unit within Gateway Client’s organization that requires invoices to be sent to an address different than the primary Account, a new Account is required. 

“Affiliates” means any entity that controls, is controlled by, or is under common control with a party, including its parents and subsidiaries. 

“API” means application programming interface.

“Documentation” means collectively, the operating instructions, user manuals, and help files, in written or electronic form, made available to Gateway Client and that are intended for use in connection with the Services. 

“Domain(s)” means any website or sites operated by or for Tib Finance, including without limitation the URL http://www.Tib Finance.com. 

“Effective Date” means the date Gateway Client acknowledges and agrees to the Agreement terms and conditions by (a) signing, (b) clicking an “I AGREE” button which may be associated with the Agreement; (c) acknowledging Gateway Client’s acceptance of the Agreement by any other method allowed by Tib Finance, including without limitation execution of a Merchant Service Provider application that incorporates the Agreement by reference; or (d) by using the Services. 

“End User” shall mean any person that purchases any of Gateway Client’s goods or services, whose information Gateway Client will submit to Tib Finance during the course of Gateway Client’s use of the Services. 

“Fee Schedule” means a list of fees and charges to be paid by Gateway Client to Tib Finance.  

“Intellectual Property” shall mean all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing. 

“Merchant Service Provider” for purposes of this Agreement, the Merchant Service Provider shall mean  any third party through whom Tib Finance may offer the Services to Gateway Client and which is processing the Transactions.  “Payment Networks” means Visa, MasterCard, American Express, Discover Financial Services, and any affiliates thereof or any other payment network applicable to this Agreement. 

“Payment Network Rules” means the operating rules, bylaws, schedules, supplements and addenda, manuals, instructions, releases, specifications and other requirements, as may be amended from time to time, of any of the Payment Networks. 

“Privacy Policy” see http://www.Tib Finance.com/privacy. 

“Services” means the Tib Finance payment management solutions provided to Gateway Client under the Agreement.  “Trademark(s)” means all common law or registered trademark, service mark, trade name and trade dress rights and similar or related rights arising under any of the laws of the United States or any other country or jurisdiction, whether now existing or hereafter adopted or acquired. 

“Transaction(s)” means any card authorization, credit, debit, capture or settlement request, decline transaction, or other related transaction, completed or submitted under Gateway Client’s account to Tib Finance. 

2.Tib Finance Undertakings.

2.1Transaction Services. Tib Finance shall provide to Gateway Client the Services at the rates set forth in the Fee Schedule and in accordance with the terms and conditions of this Agreement. 

2.2Gateway Client Service. During the term of this Agreement, if Gateway Client is current in payment of all fees owing to Tib Finance and is otherwise not in default under this Agreement, Tib Finance provides Gateway Client on a nonexclusive basis the right to use the gateway Services and Gateway Client retains and Tib Finance hereby agrees to act for Gateway Client as Gateway Client’s gateway in respect of the presentation of transactions in the Territory to the Merchant Service Provider during the Term for processing by Merchant Service Provider.  Tib Finance shall provide Services only as an intermediary providing a conduit to the Merchant Service Provider and not as a seller, supplier, payment facilitator or merchant. Gateway Client shall be a direct merchant of the Merchant Service Provider.Gateway Client agrees that Tib Finance in providing the Services hereunder does not act as a principal but acts as a gateway on behalf of such Gateway Client to facilitate Gateway Client to enter into Card payments with its End-User Gateway Clients by providing a conduit to the Merchant Service Provider services. 

3.Gateway Client’s Undertakings.

3.1ID and Password. Gateway Client will restrict access to any ID, password, and account to Gateway Client’s employees and agents as may be reasonably necessary consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the account is aware of and otherwise complies with all applicable provisions of this Agreement regarding such use and access. Gateway Client is solely responsible for maintaining adequate security and control of any and all IDs, passwords, or any other codes for purposes of giving Gateway Client access to the Services. Tib Finance shall be entitled to rely on information it receives from Gateway Client and may assume that all such information was transmitted by or on behalf of Gateway Client. Gateway Client shall comply with all Tib Finance recommendations and notices regarding the security of Gateway Client’s ID, password and payment gateway account(s).

3.2Relationship to Merchant Service Providers. 

3.2.1Gateway Client may have enrolled in the Services via a Merchant Service Provider. In addition to any other agreement Gateway Client may have with the Merchant Service Provider, the terms and conditions of this Agreement govern Gateway Client’s use and Tib Finance's provision of the Services. Gateway Client expressly acknowledges and agrees that Tib Finance may share information about Gateway Client and Gateway Client’s account with its Merchant Service Providers. 

3.2.2Transactions shall be processed through the specified Merchant Service Provider and processing options as set forth in the agreement between Gateway Client and the Merchant Service Provider. Access to the Merchant Service Provider and processing options, or alternates if necessary, may be subject to specific requirements and procedures with which the Gateway Client shall comply in order to make use thereof whether such requirements are set by Tib Finance, a Card Association or Merchant Service Provider. Authorization in respect of a transaction is not a guarantee of payment. Certain practices undertaken by the Gateway Client (such as receiving and storing Credit Card data) may require the Gateway Client to obtain and retain a certain PCI Level status at its own cost and/or providing proof of its security practices and financial standing. Gateway Client acknowledges that Merchant Service Provider will be responsible for managing and satisfying Chargebacks and Refunds and that Tib Finance has no liability or responsibility therewith or for settlement funds due from Merchant Service Provider, unless otherwise agreed by the parties in writing. Gateway Client shall not look to Tib Finance for liability or resolution of same.

3.2.3In the event that Tib Finance for any reason is unable to continue working with the Gateway Client’s nominated Merchant Service Provider, Merchant Service Provider terminates its agreement with Gateway Client or Gateway Client terminates its agreement with Merchant Service Provider, Tib Finance shall not be liable to Gateway Client for any loss or loss of business so arising and may terminate this Agreement without further liability.

3.3Compliance. In connection with the exercise of Gateway Client’s rights and obligations under this Agreement (including, without limitation, any related to individual privacy), Gateway Client will comply, at Gateway Client’s own expense, with all laws, policies, guidelines, regulations, ordinances, rules applicable to Gateway Client, this Agreement, End User data or the Transactions and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof, including, without limitation, the Payment Network Rules, the Federal Trade Commission and any applicable documentation. Tib Finance reserves the right to amend, modify or change the Services Documentation at any time. Gateway Client shall not use the Services in any manner, or in furtherance of any activity that may cause Tib Finance to be subject to investigation, prosecution, or legal action. 

3.4Additional Solutions and Services. In the event that Gateway Client enrolls in and/or utilizes any of Tib Finance’s Additional Services, Gateway Client hereby acknowledges and agrees to the terms and conditions contained in Appendix A, Additional Services Terms and Conditions. 

3.5Third Party Products and Services. Gateway Client’s use of third party products and services shall be governed by and subject to separate third party product, service, software, and/or license agreements. Tib Finance will not be a party to such third party agreements and does not warrant or guarantee any third party product or service. 

4.Data Collection, Privacy and Security.

4.1Gateway Client.

a.Gateway Client is solely responsible for the security of data residing on servers owned or operated by Gateway Client, or a third party designated by Gateway Client (e.g., a Web hosting company, processor or other service provider). Gateway Client shall comply with all applicable laws, policies and regulations governing the security, privacy, collection, retention and use by Gateway Client of End User data, including, without limitation, financial information, card account numbers, and all other personally identifiable End User information. Gateway Client agrees to provide notice to End Users on Gateway Client’s website that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement. 

b.Gateway Client will comply with all then-current legal obligations and security measures, as applicable, including without limitation those issued by Payment Networks and the Federal Trade Commission, associated with the collection, security, dissemination and destruction of End-User and Transaction data, and expressly including the Payment Card Industry Data Security Standard (PCI DSS). Gateway Client acknowledges that Gateway Client is responsible for the security of End User cardholder data while in Gateway Client’s possession. Gateway Client warrants that Gateway Client has taken such precautions as are necessary to ensure that Gateway Client’s server and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that Gateway Client’s system is breached and an unauthorized third party has access to or has accessed End-User data or Transaction data, Gateway Client shall notify Tib Finance promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future. 

c.Gateway Client agrees that Gateway Client will comply with all Tib Finance security protocols and security advisories in effect during the term of this Agreement. Gateway Client is solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by Tib Finance associated with Gateway Client’s account and verifying that all corresponding funds are accurately processed. Gateway Client acknowledges that Tib Finance shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to Gateway Client’s account, End-User or Transaction data. Tib Finance’s liability for improperly processed or unauthorized Transactions solely attributable to the negligence of Tib Finance is limited pursuant to Section 12. 

4.2 Data

a.Tib Finance will collect, retain, and disclose information and data collected from Gateway Client and End Users in accordance with Tib Finance’s documentation and Privacy Policy. In addition, Tib Finance, its subsidiaries, Merchant Service Providers, partners, suppliers and/or their agents/contractors may transfer data amongst themselves as necessary for the purpose of the provision and management of the Services. Tib Finance may further transfer data: (i) to third parties assisting Tib Finance in evaluating Gateway Client’s eligibility for, provision of, administration and management of the Services; (ii) with non-affiliated entities that assist Tib Finance in providing products and services that Gateway Client has requested; (iii) with companies that provide support services to Tib Finance or with which Tib Finance has agreements to provide marketing services on its behalf; or (iv) as otherwise permitted by law. While Tib Finance uses commercially reasonable efforts to safeguard data, Tib Finance does not warrant that End-User data and Transaction data will be transported without unauthorized interception or modification or that data will not be accessed or compromised by unauthorized third parties. 

b.With respect to the Services, at all times while this Agreement is in effect, Tib Finance will maintain compliance with the Payment Card Industry Data Security Standard (PCI DSS). Tib Finance acknowledges that Tib Finance is responsible for the security of End User cardholder data while in Tib Finance’s possession.

c.Data Retention. Gateway Client is solely responsible for compiling and retaining permanent records of all Transactions and End-User data for Gateway Client’s reference. Except as otherwise provided herein, at no time shall Tib Finance have an obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or End-User data collected or processed by Tib Finance. 

5.Fees; Taxes

5.1Tib Finance Service Fees. Gateway Client shall pay to Tib Finance the fees set forth in the Fee Schedule, whether separate or attached hereto. Notwithstanding anything to the contrary and if agreed upon by the parties, a Merchant Service Provider may charge, bill, and collect such fees from Gateway Client, in the amounts stated in and in accordance with the terms and conditions of the agreement between Gateway Client and such Merchant Service Provider. If Gateway Client’s relationship with a Merchant Service Provider expires or terminates and such Merchant Service Provider was billing Gateway Client for certain fees, Gateway Client agrees to pay Tib Finance for any further use of the Services effective immediately upon any such expiration or termination in accordance with the terms herein. 

5.2Account Fees

5.2.1Late Payment Fee. If Gateway Client does not pay owing amounts on or before the fifteenth (15th) day of the month, Gateway Client will be subject to a late payment fee, in the amount set forth in the Fee Schedule. If Gateway Client has not paid all amounts due before the last day of the month in which they were due, Gateway Client’s ability to use the Transaction Services shall automatically be suspended at the end of the month. 

5.2.2Abandoned Account Fee. If Gateway Client’s account becomes an Abandoned Account with a balance due to Gateway Client, Gateway Client shall be assessed all costs incurred by Tib Finance in managing Gateway Client’s Abandoned Account, including costs associated with attempting to locate Gateway Client to deliver Gateway Client’s account balance or incurred with respect to escheating Gateway Client’s funds to the appropriate governmental agency will be deducted from Gateway Client’s account, as applicable. 

5.3Taxes. The fees described above are exclusive of all taxes. Gateway Client agrees to pay all applicable taxes other than tax assessed on Tib Finance’s income. Gateway Client agrees that the payment of fees to Tib Finance shall be made without deduction or withholding for any taxes. If Gateway Client is required to withhold any taxes, the amount paid by Gateway Client to Tib Finance shall be increased to the extent necessary to yield to Tib Finance (after withholding of such taxes) a net amount equal to the amount Tib Finance would have received had no such withholding been made. Gateway Client bears the ultimate responsibility for the proper payment of taxes applicable to Gateway Client’s sale of its products or services. 

5.4Opening/Closing Accounts. Should a Gateway Client fail to pay fees due under an Tib Finance account (“Original Account”) and subsequently opens another Tib Finance account (“Subsequent Account”) Tib Finance reserves the right to bill the Subsequent Account for amounts due under the Original Account whether or not the Original Account was closed. 

6.Billing and Payment Terms.

6.1Tib Finance Bills Gateway Client.

6.1.1Billing Terms. Billing shall begin on the Effective Date. Tib Finance service fees are due and payable to Tib Finance as set forth in the Merchant Agreement. Payments will be made in U.S. Dollars. 

a. Gateway Client hereby authorizes Tib Finance to initiate transaction entries to Gateway Client’s depository account(s) provided in its Gateway Client application for all amounts due to Tib Finance by Gateway Client under this Agreement. This authority is to remain in full force and effect until Tib Finance has received written notification from Gateway Client of its request for termination in such time as to afford Tib Finance a commercially reasonable opportunity to acknowledge and respond to the request. If Gateway Client’s depository account(s) number and/or federal income tax ID number changes, Merchant shall promptly update its account information in the Merchant Interface. Entries initiated to or from Gateway Client’s depository account will be in accordance with the rules of the National Automated Clearing House Association (NACHA) and/or any other regulatory body or agency having jurisdiction over the subject matter hereof. 

6.1.2 Disputes. The parties shall promptly investigate any disputed fees under this Agreement. A dispute will not relieve Gateway Client of its payment obligations herein. If an event of dispute is resolved in Gateway Client’s favor Tib Finance will credit back to Gateway Client any applicable overpayments made by Gateway Client. All disputes must be made in good faith and in writing within thirty (30) days of the billing statement date. Fees billed shall be deemed accepted where written objections are not lodged within such thirty (30) day period. 

6.2 Merchant Service Provider Bills Gateway Client. Notwithstanding Section 6.1, if Gateway Client is to be billed by a Merchant Service Provider for some or all of the fees associated with Services, Gateway Client shall pay the Merchant Service Provider in accordance with the terms mutually agreed upon between Gateway Client and such Merchant Service Provider and Tib Finance shall have no liability or responsibility.

7.Term. Unless otherwise terminated in accordance with the provisions herein, this Agreement shall remain in effect for a term co-extensive with that of Gateway Client’s agreement with a Merchant Service Provider with which Tib Finance has a processing relationship and agreement related to Gateway Client.

8.Termination and Suspension.

8.1Termination by Gateway Client. Gateway Client may terminate this Agreement at any time and for any reason, with or without cause, upon written notice to Tib Finance. In the event Gateway Client is billed by a Merchant Service Provider in accordance with Section 6.2, Gateway Client hereby authorizes the Merchant Service Provider to terminate this Agreement on Gateway Client’s behalf. 

8.2Termination by Tib Finance. Tib Finance may terminate this Agreement and/or Gateway Client’s access to the Services, at any time and for any reason, without cause, upon thirty (30) days’ written notice, or immediately upon cause. 

8.3Termination or Suspension of Gateway Client by a Merchant Service Provider. If Tib Finance is to be paid for Gateway Client’s access to and use of the Services by a Merchant Service Provider, and if Tib Finance receives notice from such Merchant Service Provider that it has terminated or suspended its relationship with Gateway Client, Tib Finance may suspend and/or terminate Gateway Client’s right to access and use the Services and/or this Agreement without notice and without liability. In addition, Tib Finance may suspend and/or terminate the Services and/or this Agreement without notice and without liability upon receipt of notice from Gateway Client’s Processor or acquiring bank that Gateway Client is no longer entitled to send an authorization message, settlement message, or other message or payment data related to a card transaction to Gateway Client’s Processor. 

8.4Violation. In the event that Tib Finance reasonably believes that Gateway Client is in violation of its obligations hereunder, including, without limitation, selling products or services that violate law or regulation, or that Gateway Client’s conduct poses a threat to Tib Finance’s systems, equipment, processes, or Intellectual Property, Tib Finance may immediately suspend Gateway Client’s Account(s). In any event, Tib Finance may terminate this Agreement if the violation remains uncured more than thirty (30) calendar days after Gateway Client is notified of the Threatening Condition. 

8.5Effect of Termination. Upon termination of the Agreement for any reason, all rights and obligations of the parties under this Agreement shall be extinguished, except that (a) all payment obligations hereunder shall survive such termination; and (b) the rights and obligations of the parties under Sections 9.1, 10, 11, 12, 13, 14 and 15 shall survive such termination.  9. Intellectual Property.  

9.1Tib Finance. The parties agree that Tib Finance owns and retains all right, title and interest in and to the Tib Finance trademarks, Services, copyrights and any related technology utilized under or in connection with this Agreement, including but not limited to all intellectual property rights associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to Gateway Client or any other entity or person under this Agreement. Gateway Client will not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the Services or related technology. 

9.2API and Services Documentation Right to Use. Subject to the terms of this Agreement, Tib Finance hereby grants to Gateway Client and Gateway Client hereby accepts from Tib Finance a personal, limited, non-exclusive, nontransferable right to use any applicable Tib Finance API and accompanying documentation for the following purposes: 

i.install and use the Tib Finance API on as many machines as reasonably necessary (which machines are and shall be maintained in facilities owned, occupied, or leased by Gateway Client) to use the Services for the purpose of selling products and services to End-Users; 

ii.use the accompanying documentation solely for the purpose of using the Tib Finance APIs and Services; and  iii. create a reasonable number of copies of the Tib Finance API and documentation, with all copyright notices intact, for archival purposes only. 

9.3Tib Finance Trademarks License. Subject to the terms and conditions contained herein, Tib Finance hereby grants to Gateway Client a non-exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display the Tib Finance trademarks on Gateway Client’s website in connection with Gateway Client’s offering of payment options to End Users. 

9.4Gateway Client’s Marks License. Subject to the terms and conditions contained herein, Gateway Client hereby grants to Tib Finance a non-exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display Gateway Client’s Marks as necessary in connection with the performance of the Services. 

9.5Use of Trademarks. Each party shall strictly comply with all standards with respect to the other party's Trademarks contained herein or which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more Trademarks of the other party. All uses of the other party's Trademarks shall inure to the benefit of the party owning such Trademark. Either party may update or change the list of Trademarks usable by the other party hereunder at any time by written notice to the other party. 

9.6Trademarks and Domain Registration. Except as otherwise provided herein, Gateway Client shall not use, register or attempt to register any  marks or domain names that are confusingly similar to any of the Tib Finance trademarks or the domain(s). 

9.7Trademark Restrictions. Gateway Client shall not (a) use the Tib Finance trademarks except as expressly authorized in this Agreement; (b) take any actions inconsistent with Tib Finance’s ownership of the Tib Finance trademarks and any associated registrations, or attack the validity of the Tib Finance trademarks, its ownership thereof, or any of the terms of this Agreement; (c) use the Tib Finance trademarks in any manner that would indicate Gateway Client is using such Tib Finance trademarks other than as a licensee of Tib Finance; nor (d) assist any third party do any of the same. 

10.Confidential Information. 

10.1Definition of Confidential Information.  As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Confidential Information will not include any information that:  (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.  End-User Customer Information will be Confidential Information under this Agreement. 

10.2Confidentiality.  The Receiving Party may not disclose or use any Confidential Information of the Disclosing Party for any purpose other than to exercise the rights granted to it or perform its obligations under the Agreement.

10.3Compelled Disclosure.  If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it may do so; provided that it provides the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

10.4Remedies.  If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Agreement, the Disclosing Party will have the right, in addition to any other remedies available to it, to obtain injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

10.5Return of Confidential Information.  Upon termination or expiration of this Agreement, the Receiving Party shall return all copies of the Disclosing Party’s confidential information (with the exception of 1 archival copy for the purpose of compliance with these obligations) or remove same from all media and destroy same.

10.6Survival of Confidentiality.  The obligations under this section shall continue for three (3) years from the termination/expiration of this Agreement.

10.7Permitted Releases.  Notwithstanding the foregoing, Tib Finance reserves the right to release information of Gateway Client to law enforcement and Card Associations upon request or if Tib Finance reasonably believes Client or any representative thereof was involved in violations of any law. Tib Finance also reserves the right to release information to legal and other professional advisers acting under a duty of confidentiality, and to access and use such information to undertake investigations in cases of suspected or actual fraud, criminal behavior, misrepresentation, security breach, and/or breach of Card Association Rules. Further, Tib Finance may use aggregated non-personally identifiable information for marketing statistics and similar uses.

11.Representations and Warranties; Disclaimers

11.1Mutual Warranties. Each party represents and warrants to the other that (a) it has all necessary right, power and ability to execute this Agreement and to perform its obligations therein; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery or performance of this Agreement, (c) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms, (d) the party's obligations under this Agreement do not violate any law, policy or regulation or breach any other agreement to which such party is bound; and (e) it has all right, title or interest, or valid license to use its respective Marks, and that its grant of rights associated therewith do not violate any intellectual property or other proprietary rights of any third party. 

11.2Tib Finance Warranty.

11.2.1With respect to the Services, Tib Finance represents and warrants that the Services provided to Gateway Client hereunder will conform substantially to specifications set forth in the applicable Services Documentation, as may be amended from time to time at Tib Finance’s sole discretion. The preceding warranty will not apply if (a) any Services or products provided hereunder are used in material variation with this Agreement or documentation; (b) any Services or products have been modified without the prior written consent of Tib Finance; or (c) a defect in any Services or products has been caused by any of Gateway Client’s malfunctioning equipment or software. Gateway Client expressly acknowledges that the Services are computer network-based services, which may be subject to outages, interruptions, attacks by third parties and delay occurrences. 

11.2.2In the event Gateway Client discovers that any Services or products are not in conformance with the representations and warranties made in Section 11.2.1 and report such non-conformity to Tib Finance or if the Services are subject to outages, interruptions, attacks by third parties and delay occurrences, Tib Finance shall use commercially reasonable efforts to remedy material interruptions and will provide adjustments, repairs and replacements, within its capacity, that are necessary to enable the Services to perform their intended functions in a reasonable manner. Gateway Client acknowledges that Tib Finance does not warrant that such efforts will be successful. If Tib Finance's efforts are not successful, Gateway Client may immediately terminate this Agreement. The foregoing shall constitute Gateway Client’s sole remedy, and Tib Finance's sole liability, in the event of interruption, outage or other delay occurrences in the Services. Tib Finance does not warrant the services of any third party, including without limitation, the Merchant Service Provider, bank or any third party processor. 

11.2.3DISCLAIMER. THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. TIB FINANCE DOES NOT REPRESENT OR WARRANT THAT

THE SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. GATEWAY CLIENT MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS OR WARRANTIES OF ANY MERCHANT SERVICE PROVIDER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.2.1, TIB FINANCE SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES

OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR TITLE WITH RESPECT TO THE SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. GATEWAY CLIENT UNDERSTANDS AND AGREES THAT TIB FINANCE SHALL BEAR NO RISK WITH RESPECT TO GATEWAY CLIENT’S SALE OF PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CARD FRAUD OR CHARGEBACKS. 

11.3Gateway Client’s Warranties. Gateway Client represents and warrants that at all times during the term of this Agreement and any renewal thereof: (i) all representations and statements made by Gateway Client in this Agreement, or in any other document relating hereto by Gateway Client or on Gateway Client’s behalf, are true, accurate and complete in all material respects; (ii) it is engaged in a lawful business and has all necessary rights and authorizations to sell and distribute its products and/or services; (iii) Gateway Client will comply, at Gateway Client’s own expense, with all laws, policies, guidelines, regulations, ordinances or rules applicable to Gateway Client, this Agreement, End User data or the transactions, including, without limitation: (a) the Payment Network Rules; (b) the Payment Card Industry Data Security Standard (PCI DSS); (c) any regulatory body or agency having jurisdiction over the subject matter hereof; and (d) the documentation. 

11.4Third Party Programs. Gateway Client acknowledges that the Services are designed for use with certain third party programs, including, without limitation, certain Internet browser and software programs developed and owned by third parties. Gateway Client will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Tib Finance does not warrant and shall not be responsible for services or software provided by unaffiliated third party vendors. Gateway Client authorizes Tib Finance to disclose to any third party vendor information concerning Gateway Client to the extent required to deliver the requested service. 

12.LIMITATIONS OF LIABILITY AND DISCLAIMERS.

12.1LIMITATIONS. UNDER NO CIRCUMSTANCES (I) WILL TIB FINANCE OR ANY OF ITS PARENTS, AFFILIATES OR VENDORS (OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, AFFILIATES OR VENDORS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGE OR LOSS SUFFERED OR INCURRED BY GATEWAY CLIENT, REGARDLESS OF THE FORM OF ACTION, OR ANY LOSS OF REVENUE, PROFITS OR BUSINESS, ANTICIPATED SAVINGS, LOSS OF GOODWILL OR REPUTATION, COSTS OF DELAY, LOST OR DAMAGED DATA, OR THE INCURRING OF LIABILITY FOR LOSS OR DAMAGE OF ANY NATURE WHATSOEVER SUFFERED BY THIRD PARTIES, ALL WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE), REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) WILL TIB FINANCE’S TOTAL AGGREGATE LIABILITY TO GATEWAY CLIENT UNDER THIS AGREEMENT EXCEED THE GREATER OF THE AGGREGATE COMPENSATION TIB FINANCE RECEIVED FOR PROVIDING THE SERVICES TO GATEWAY CLIENT DURING THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,000. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO EXCLUDE OR LIMIT LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW. 

12.2DISCLAIMER. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, GATEWAY CLIENT EXPRESSLY AGREES THAT TIB FINANCE SHALL NOT BE LIABLE FOR ANY LOSS (HOWEVER OCCURRING, INCLUDING NEGLIGENCE), ARISING FROM OR RELATED TO: (A) GATEWAY CLIENT’S FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE GATEWAY CLIENT’S MERCHANT ACCOUNT; (B) FRAUDULENT TRANSACTIONS PROCESSED THROUGH GATEWAY CLIENT’S PAYMENT GATEWAY ACCOUNT(S); (C) DISRUPTION OF SERVICES, SYSTEMS, SERVER OR WEBSITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (D) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A MERCHANT SERVICE PROVIDER, PAYMENT PROCESSOR OR BANK; OR (E) THE LIMITATION OF THE FUNCTIONING OF ANY SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH. 

12.3THIRD PARTY PRODUCTS AND SERVICES. TIB FINANCE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THIRD PARTY PRODUCTS OR SERVICES. GATEWAY CLIENT’S USE OF THIRD PARTY PRODUCTS AND SERVICES IS AT GATEWAY CLIENT’S OWN RISK. TIB FINANCE ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY THIRD PARTY PRODUCT OR SERVICE, REGARDLESS OF WHETHER OR NOT TIB FINANCE IS A RESELLER OF OR REFERRAL AGENT FOR SUCH PRODUCT OR SERVICE. 

13.Indemnification.

13.1Indemnification by Tib Finance. 

13.1.1General. Tib Finance shall defend, indemnify and hold Gateway Client and any of Gateway Client’s officers, directors, agents and employees harmless from and against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by Gateway Client, arising out of or relating to any alleged infringement of a U.S. patent or copyright of any other entity or person by the Services. 

13.1.2Limitation; Prevention of Infringement. Tib Finance's obligations in Section 13.1.1 do not apply if: (i) the Services have been modified by parties other than Tib Finance; (ii) the Services are used in conjunction with data where use with such data gave rise to the infringement claim; (iii) Gateway Client’s failure to install upgrades or patches provided by Tib Finance where such upgrade or patch would have removed the infringing condition; (iv) Gateway Client’s use of the Services in a manner inconsistent with documentation; or (v) Gateway Client’s use of the Services with software or hardware not authorized by Tib Finance, where use with such other software or hardware gave rise to the infringement claim. If the Services or any component thereof becomes, or in Tib Finance's opinion is likely to become, the subject of a claim of infringement, then Gateway Client shall permit Tib Finance, at Tib Finance's sole option and expense, either to (i) procure for Gateway Client the right to continue using the Services as permitted in this Agreement, or (ii) replace or modify the affected Services or infringing component so that it becomes non-infringing. If, after using commercially reasonable efforts, Tib Finance is unable to cure the infringement, either party may immediately terminate this Agreement. THIS SECTION 13.1.2 STATES THE ENTIRE LIABILITY OF TIB FINANCE TO GATEWAY CLIENT WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES.

13.2Indemnification by Gateway Client. Gateway Client shall defend, indemnify, and hold harmless Tib Finance and its affiliates, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by Tib Finance, arising out of or relating to (a) any breach or alleged breach by Gateway Client of any representation, warranty, or obligation of Gateway Client set forth in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Gateway Client or any of Gateway Client’s employees, agents or Gateway Clients; (c) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by Gateway Client to Tib Finance; (d) payment card transactions submitted by Gateway Client to Tib Finance and rejected by Tib Finance or an issuing bank; (e) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from Gateway Client’s actions; (f) claims by End Users, including, without limitation, claims relating to the disclosure of End User or consumer data; or (g) any alleged or actual violation by Gateway Client of any applicable laws, regulations, the Payment Network Rules or any regulatory body or agency having jurisdiction over the subject matter hereof. In the event Gateway Client causes fines and/or penalties to be charged to Tib Finance by the Payment Networks or any other entity, Gateway Client agrees to immediately reimburse Tib Finance for said fines or penalties. 

13.3Indemnification Procedure. The obligations of each party (“Indemnitor”) under this Section 13 to defend, indemnify and hold harmless the other party (“Indemnitee”) shall be subject to the following: (a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this section to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnitee may participate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice Indemnitee in any way. 

13.4Exceptions. If Gateway Client is an agency or instrumentality of a state of the United States and are precluded by the law of Gateway Client’s state from entering into indemnification obligations, then the obligations under Sections 13.2 and 13.3 shall apply only to the extent permitted by such state law. 

14.General Provisions.

14.1Marketing. Except for any announcement intended solely for internal distribution or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of either party, all media releases, public announcements or public disclosures (including, but not limited to, promotional or marketing material) by either party or its employees or agents relating to this Agreement or its subject matter, or including the name, trade name, trademark, or symbol of the other party, are prohibited without the prior written consent of both parties. Notwithstanding the foregoing, either party shall be entitled to disclose the existence of the relationship formed hereunder between Tib Finance and Gateway Client without the prior written consent of the other party and Tib Finance shall be entitled to include Gateway Client’s name and/or logo in Gateway Client lists within Tib Finance corporate presentations without prior written consent. 

14.2Non-exclusivity. Each party acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein.

14.3Relationship of the Parties.  The parties are independent contractors.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary and/or employment relationship between the parties.

14.4No Third-Party Beneficiaries.  There are no third-party beneficiaries to this Agreement.  Further, Gateway Client is not a third party beneficiary to any agreement between Tib Finance and an Merchant Service Provider.

14.5Notices.  All notices under this Agreement including but not limited to relating to the term, its extension or termination or any alleged breach of this Agreement, indemnity claim or notification relating to any taxation matter are required to be in writing and will be deemed to have been given upon:  (i) personal delivery; (ii) the second business day after mailing by first class U.S. mail to an address within the continental United States; (iii) the business day after sending by confirmed facsimile;  (iv) the business day after sending by email or (v) pursuant to Section 14.4.1.  Notices to Tib Finance are to be addressed to: 800 South Street, Suite 640, Waltham, MA 02453.  Notices to Gateway Client will be addressed to the address first stated in this Agreement or such subsequent address as Gateway Client delivers to Tib Finance in writing. 

14.5.1Gateway Client agrees that Tib Finance may communicate with Gateway Client via electronic notices, notices on its website, www.Tib Finance.com, and/or the current administrative e-mail address that Tib Finance has on file for the Gateway Client. Gateway Client affirmatively consents to receive notices electronically from Tib Finance and agrees that Tib Finance may provide all communications and transactions related to the Services and Gateway Client’s account, including without limitation any ancillary agreements related to the Services, amendments or changes to such agreements, Card Association Rules, or any disclosures, notices, transaction information, statements, policies (including without limitation notices about the Tib Finance Privacy Policy), responses to claims, and other customer communications that Tib Finance may be required to provide to Gateway Client by law (collectively, “Communications”) in electronic format. All such Communications will be deemed to be in "writing" and received by Gateway Client when sent. Gateway Client shall be responsible for printing, storing, and maintaining its own records of such Communications. Where appropriate Gateway Client shall send its responses to such notices to Tib Finance at the designated e-mail address(es) set out in the Services or

through the applicable submission forms if provided. Tib Finance reserves the right to discontinue or modify how Communications are provided and shall give Gateway Client prior notice of any change. Gateway Client’s continued consent is required to use the Services. 

14.6Waiver and Cumulative Remedies.  No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. A waiver shall only be effective in writing executed by the party granting the waiver. Other than as expressly stated herein, any remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

14.7Force Majeure.  Tib Finance will be under no liability to Gateway Client for, and is excused from, any failure to deliver or perform or for delay in delivery or performance due to causes beyond its control, including, but not limited to, governmental actions, fire, work stoppages, shortages, war, terrorism, civil disturbances, transportation problems, interruptions of power or communications, Internet service provider or hosting facility failures or delays involving third party hardware or software systems, denial of service attacks, acts of third parties outside of Tib Finance’s control, natural disasters or significant changes in the ability of Tib Finance to offer the Services in terms of the scope and/or price set out herein as a result of changes in law, or in policy of Card Associations and/or relevant Merchant Service Providers, and/or governmental authorities. 

14.8Severability.  If any provision of this Agreement 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 this Agreement will remain in effect.

14.9Assignment.  Gateway Client may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Tib Finance, which consent shall not be unreasonably withheld or delayed.  Any attempt otherwise for Gateway Client to do so shall be void and of no effect.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

14.10Amendment of Agreement.  Any amendment of the terms of this Agreement by Tib Finance may be upon thirty (30) days prior written notice, provided that Gateway Client shall, if not in agreement with such amendment, have the option to terminate this Agreement in writing within said thirty (30) day period or shall be deemed to have accepted such amendment.

14.11Governing Law. This Agreement and any matter arising out of or related to it is to be governed, interpreted, construed and enforced solely and exclusively in accordance with the law as set forth in Tib Finance’s Merchant

Agreement.. GATEWAY CLIENT WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR TO BE DELIVERED IN CONNECTION WITH THIS AGREEMENT OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY ACTION WILL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.

14.12Survival. The provisions of this Agreement relating to any fees or other amounts owed, payment of interest on unpaid fees, confidentiality, warranties, limitation of liability, indemnification, governing law, severability, headings and this paragraph shall survive termination or expiration of this Agreement. 

14.13Mobile Device Application. If Gateway Client chooses to download and use the Tib Finance mobile device application, Gateway Client’s use of the application shall be subject to the additional usage terms governing such application located within the application service provider’s user interface. 

14.14Affiliates. The rights, duties and/or obligations of Tib Finance under this Agreement may be exercised and/or performed by Tib Finance and/or any of Tib Finance’s Affiliates, or any of their subcontractors and/or agents. All liabilities arising under or as a consequence of this Agreement, whether arising from the acts or omissions of Tib Finance or any of Tib Finance’s Affiliates, or any of their subcontractors and/or agents, shall be solely Tib Finance’s and not those of any of Tib Finance’s Affiliates, or any of their subcontractors and/or agents. Gateway Client agrees to bring any claim and or action relating to the foregoing against Tib Finance only and not against any of Tib Finance’s Affiliates, or any of their subcontractors and/or agents. 

14.15Government Entity Obligations. If Gateway Client is a governmental or quasi-governmental entity, Gateway Client agrees that it has informed Tib Finance, and will inform Tib Finance of any changes or updates, in writing, of any law, regulation, ordinance, policy, or ethical requirement that would restrict or require disclosure of any political contributions made by Tib Finance or its directors, officers, or employees because of the existence of a contract between Gateway Client and Tib Finance. 

14.16Export Control. Gateway Client understands and acknowledges that Tib Finance is subject to regulation by agencies of the U.S. government which prohibits export or diversion of certain products and technology to certain countries, persons, or other entities. Any and all obligations of Tib Finance to provide the Services shall be subject to all applicable export laws and restrictions and regulations. Gateway Client agrees to comply with all applicable export laws and restrictions and regulations and not to export or re-export any Tib Finance Intellectual Property (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to any person on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Person’s List. 

14.17Gateway Client’s Capacity and Related Matters. By accepting the terms and conditions of this Agreement, Gateway Client represents and warrants that (a) the person executing this Agreement on behalf of Gateway Client is 18 years of age or older, (b) all information Gateway Client has provided to Tib Finance is true and correct in all respects, and (c) Gateway Client will update Tib Finance by email with any changes to information Gateway Client has previously supplied. Gateway Client further represents and warrants that Gateway Client has the legal authority to accept the terms and conditions of this Agreement and that such acceptance will be binding on Gateway Client. Tib Finance reserves its right, in its sole discretion, to refuse to provide Gateway Client with any Tib Finance Service. Words and phrases with initial letters capitalized and not otherwise defined herein shall have the meaning set forth in Section 1 herein. 

EXHIBIT 16

PAYMENT GATEWAY MERCHANT SERVICE AGREEMENT - NMI

(For Merchants using Tib Finance Services through an NMI (National Merchants LLC) Plug In)

Network Merchants LLC (NMI), hereinafter referred to as “Payment Gateway”, offers merchants various products and services relating to payment processing and other value-added services directly and through Third Party Service Providers. In order for you, on behalf of your company, to obtain or continue using the transaction processing services, payment gateway services and other value-added products and services, more fully described at https://www.tib.financeas such descriptions may be changed from time to time (the “Payment Gateway Services”), you must agree to and accept the terms and conditions of this agreement (the “Agreement”). This Agreement sets out the terms and conditions under which you may utilize the Payment Gateway Services. Please read this Agreement carefully. It is important that you understand that upon your acceptance of this Agreement, by continuing to use any of the Payment Gateway Services and/or by clicking on the “I AGREE” button at the end of this Agreement, it becomes a legally binding contract.

By continuing to use any of the Payment Gateway Services and/or by clicking on the “I AGREE” button you represent that you have reviewed and understand the Agreement and agree to be legally bound by all its terms and conditions (including the terms and conditions stated on web pages incorporated by reference herein). If you do not agree or are not willing to be bound by the terms and conditions of this Agreement, please do not click on the “I AGREE” button and do not seek to obtain or continue using the Payment Gateway Services.

NOW THEREFORE, you and/or your company, (“You” or “Your”) agree as follows:

1.DEFINITIONS:

“Acquirer” or “Acquiring Bank” or “Acquiring Institution” means the financial institution supplying You with the ability to accept credit cards for payments. The financial institution will charge You fees for providing these services.

 “ACH” or “Automated Clearing House” means an electronic network that allows the exchange and settlement of electronic payments between financial institutions. “Affiliate Partner” means any third party through whom Payment Gateway may offer the Payment Gateway Services to You, including but not limited to an “ISO” or “Independent Sales Organization”, Merchant Service Provider (“MSP”), Value Added Reseller (“VAR”), Application Service Provider (“ASP”), Acquiring Bank and Financial Institution. “API” or “Application Programming Interface” means an interface allowing integration with a programmable software package or platform. “AVS” or “Address Verification Service” for the purposes of this agreement shall mean a response generated by the Issuing Bank to indicate the level of accuracy of a given address based on the billing address of the customer's credit card. “Batch” means any bulk processing of Transactions, or a bulk settlement submitted to a Processor by Payment Gateway including credit card, ACH, or other related transactions. “Card Association” for the purposes of this Agreement means a network of Issuing Banks and Acquiring Banks that process payment cards of a specific brand. Without limiting the foregoing definition, American Express, Discover Financial Services, JCB

International, MasterCard International Inc., Visa Inc., Visa International Inc., and any other payment card company belong to the Card Association. “Close Batch” means the process of sending a batch of transactions for settlement.

  “Confidential Information” means any information, data, trade secrets, know-how, directly, or indirectly, in writing or orally or by inspection of samples, equipment or facilities, including but not limited to past, present and future research, products, product plans, services, services documentation (in whatever form or media provided) customers, customer lists, user data, revenue, markets, software developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration, marketing, marketing materials, financial or other business information, or the financial terms of this Agreement.“Discount Rate” means the fee charged by Your financial institution to You for services associated with processing card transactions or fees charged by Payment Gateway to You for ACH or  other    payment    methods. “Effective Date” means the earlier of the date You agree to the terms and conditions of the Agreement by (i) clicking the “I AGREE” button associated with the Agreement; or (ii) by using Payment Gateway Services or (iii) acknowledging Your acceptance of the Agreement by any other method, including without limitation execution of a Merchant Account Application that incorporates the Agreement     by     reference. “Fee Schedule” means a list of fees and charges that is accepted by You and paid by  you  to Payment  Gateway. “Interchange Fee” means the fee set by and collected by the Card Association from Your financial institution (Acquiring Bank) and paid to the issuing financial institution (Issuing Bank) to cover expenses incurred  in  billing  the  cardholder. “IP Address” means an internet address usually represented in dotted   decimal,    e.g.   “127.0.0.1”. “Issuing Bank” means the financial institution that issues Card Association branded Payment Cards directly to consumers. “PCI DSS” means Payment Card Industry Data Security Standard. “Privacy Policy” means the then current Payment Gateway Privacy Policy which can be found on the internet athttps://www.tib.finance/privacy-policy

“Return Payment Fee” is a fee charged to You by Payment Gateway on each occurrence when Payment Gateway is unable to collect fees on Your Account for any reason, including but not limited to insufficient funds, closed account, or any other negative response. “Third Party Service Provider” for purposes of this Agreement means an entity that provides bank and/or merchant payment services including, but not limited to billing, reporting, customer service, authorization, and settlement  services. “Trademark(s)” means all common law or registered trademark(s), service mark(s), trade name(s) and trade dress rights and/or similar or related rights under any laws of any country or jurisdiction, including but not limited to the United States of America whether existing now or hereafter adopted. “Transaction(s)” means any billable occurrence completed or submitted under Your Account including but not limited to sale, void, refund, credit, offline force, capture, authorization, validate, update or settlement regardless of whether approved or declined. “VAR” or “Value Added Reseller” means any thirdparty vendor that enhances or modifies existing hardware or software, adding value to the services provided by the processor or acquirer.

“Value Added Service(s)” means the following Payment Gateway Services, including but not limited to: Customer Vault™, iSpyFraud™, CertifyPCI™, Advanced Transaction Routing Interface™ (ATRI™), and /or any other service or product offered by Payment Gateway now or in the future. 2.TERM:

The term of the Agreement shall commence on the Effective Date and shall remain in full force and effect until terminated pursuant to Section 10.

3.LEGAL:

By accepting the terms and conditions of this Agreement, You represent and warrant that (i) You have the legal authority to accept the terms and conditions of this Agreement on behalf of Your company and that such acceptance will be binding on Your company, (ii) all information You have provided to Payment Gateway is true and correct in all respects, and (iii) You will update Payment Gateway in writing with any changes to information You have previously supplied. In furtherance of Your representations, Payment Gateway reserves its right to refuse to provide You with any Payment Gateway Service and terminate this Agreement, with or without notice, if You have supplied any information which is misleading, untrue, inaccurate or incomplete.

4.USE OF PAYMENT GATEWAY SERVICES

4.1Payment Gateway Grant

You are hereby granted a non-exclusive right to use the Payment Gateway Services during the Term hereof so long as You are current in paying all applicable fees as referenced in Section 8 and Section 9 hereof, subject to the restrictions contained herein and restrictions communicated to You in the future by Payment Gateway. Payment Gateway shall provide the Payment Gateway Services to You in all material respects in accordance with the terms and conditions of this Agreement and Your rights are granted solely for the purposes contained herein and for no other purpose. (a)    Your use of the Payment Gateway Services shall be restricted to You. You shall not submit Data or Transaction data to Payment Gateway or otherwise process orders on behalf of any other entity or individual. Any attempt by You to use the Payment Gateway Services on behalf of another entity or individual may result in Your obligation to pay to Payment Gateway additional fees and charges and/or Payment Gateway may revoke Your right to use the Payment Gateway Services and terminate this Agreement.

(b)In connection with the exercise of Your rights and obligations under this Agreement including, without limitation, any related to individual privacy, You will comply, at Your own expense, with all applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction. You shall not use the Payment Gateway Services in any manner, or in furtherance of any activity that may cause Payment Gateway to be subject to investigation, prosecution, or legal action.

(c)Payment Gateway reserves the right to amend, modify or change its policies, procedures, and guidelines and You shall comply with all then   current policies, procedures, and guidelines of Payment Gateway governing the Payment Gateway Services.

5.DATA SECURITY, COLLECTION, TRANSFER AND RETENTION

5.1Payment Gateway’s Duties

(a)You understand Payment Gateway will collect, retain, use and share information and data collected from You and your customers in accordance with Payment Gateway’s then current Privacy Policies. You hereby consent, as a condition of Your enrollment in and use of the Payment Gateway Services, to the collection, use, processing and transfer of personal data as described in Section 5 and Payment Gateway’s Privacy Policies.

(b)You understand that Payment Gateway may collect and hold personal or non-public information about You and Your customers, including but not limited to: Your name, address, telephone number, e-mail address, social security number and/or tax identification number and payment data as well as Your customers' names, mailing & shipping addresses, email addresses, phone number, types of purchases and descriptions of purchases (“Data”) for the purpose of considering eligibility for the Payment Gateway Services and for the purpose of providing You and your customers with the Payment Gateway Services. You also understand and agree that Payment Gateway, its subsidiaries, Affiliate Partners, Third Party Service Providers, suppliers and/or their agents and/or contractors may transfer Data among themselves as necessary for the purpose of the provision and management of the Payment Gateway Services and that Payment Gateway may further transfer Data (i) with non-affiliated entities that assist Payment Gateway in providing products and services that You have requested; (ii) with companies that provide support services to Payment Gateway; (iii) with companies that provide marketing services on behalf of Payment Gateway; or (iv) as otherwise provided by law. (c)You further understand that in evaluating Your eligibility for, provision of, administration and management of the Payment Gateway Services, as well as under circumstances described in the Privacy Policy that may be changed from time to time, that Payment Gateway may obtain various consumer reports regarding You from third parties, run a credit check or obtain other personal or credit information about You.

(d)You further understand that while Payment Gateway uses commercially reasonable efforts to safeguard Data and Transaction data transmitted while using Payment Gateway Services, Payment Gateway does not warrant that Data and Transaction data will be transported without unauthorized interception or modification or that Data or Transaction data will not be accessed or compromised by any unauthorized third parties. (e)With respect to the Payment Gateway Services, at all times while this Agreement is in effect, Payment Gateway will maintain compliance with the Payment Card Industry Data Security Standard (PCI DSS).

5.2Your Duties

You agree that you will comply at all times with all applicable and then-current legal obligations and security measures including without limitation those issued by the United States Government, Federal, State and Municipal laws and ordinances, Card Association, the Federal Trade Commission, PCI DSS and any other governing body. You agree that you will comply with all Payment Gateway security protocols, notices and safeguards in effect during the term of this Agreement. You warrant that You have taken such precautions as are necessary to ensure that Your data and Your customer data is protected and that Your electronic systems are secure from breach, intrusion or compromise by any unauthorized third parties. In the event that Your system is breached and an unauthorized third party has access to or has accessed Data or Transaction data, You shall notify the designated parties as required under any applicable laws or industry guidelines and shall immediately notify Payment Gateway of such breach and take such prompt action and precautions as necessary to prevent any continuous or additional breach.

(a)You are solely responsible for the security of data residing on server(s) owned or operated by You, Third Party Service Provider, or a third party designated by You (e.g., a web hosting company, processor, or other service provider), including credit card numbers and any other personal data. You shall comply with all applicable laws and regulations governing the collection, retention and use by You of credit card and other financial information and agree to provide notice to your customers on Your web site that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement.

(b)You agree that You are solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by Payment Gateway associated with Your account and verifying that all corresponding funds are accurately processed. You acknowledge that the fees associated with any and all transactions processed through Your account are earned by Payment Gateway and shall not be reimbursed. You acknowledge that Payment Gateway shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to Your account, Data or Transaction data. Payment Gateway’s liability for unauthorized Transactions or improperly processed Transactions solely attributable to the negligence of Payment Gateway is limited pursuant to Section 13.

(c)You agree not to use, disclose, sell or disseminate any card, cardholder or ACH information obtained in connection with a Transaction except for purposes of completing or settlement of a Transaction and/or resolving chargebacks, retrievals or similar issues involving a Transaction unless required to do so by court order or governmental agency request, subpoena or order.

(d)You agree that You are solely responsible for compiling and retaining permanent records of all Data and Transaction data for Your reference. Except as otherwise provided herein, Payment Gateway shall have no obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or other Data collected or processed by Payment Gateway. You acknowledge that upon termination of this Agreement, Payment Gateway shall have no obligation to provide You with any Data or Transaction data. You agree that You shall use proper controls for and limit access to all Data or Transaction data. Prior to discard You shall render all Data or Transaction data unreadable and abide by any laws or regulations imposed on You for Data or Transaction data destruction and/or disposal. 5.3 Your User Name and Password

(a) In connection with Your rights described in Section 4.1, Payment Gateway or Affiliate Partner will issue to You, or permit You to use a user name and password, to enable You and/or Your employees and agents to access Your gateway account and use the Payment Gateway Services. You will restrict access to such user name, password, and account to Your employees and agents as may be reasonably necessary and consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the account is aware of and otherwise complies with all applicable provisions of this Agreement and any recommendations and notices regarding such use and access. (b)You are solely responsible for maintaining adequate security and control of any and all user names, passwords, or any other codes that are issued to You by Payment Gateway or Affiliate Partner or selected by You, for purposes of giving You access to the Payment Gateway Services. Payment Gateway shall be entitled to rely on information it receives from You and may assume that all such information was transmitted by or on behalf of You.

6.TRADEMARKS

6.1 Trademark Use

Payment Gateway hereby grants to You the right to use, reproduce, publish, perform and display the Payment Gateway Marks as follows: (a) on Your web site in connection with Your offering of Payment Gateway Services to Your customers; and (b) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Payment Gateway Services.  

You hereby grant to Payment Gateway, its Third Party Service Provider and its Affiliate Partners the right to use, reproduce, publish, perform and display Your Marks as follows: (a) in connection with the development, use, reproduction, modification, adaptation, publication, display and performance of the Payment Gateway Services offered and/or accessible through Your web site; and (b) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Payment Gateway Services.  

For purposes of this Agreement, “Your Marks” means Your customary name and logo, and such other trademarks as You may from time to time notify Payment Gateway to be “Your Marks” within the meaning of this Agreement. For purposes of this Agreement, “Payment Gateway Marks” means Payment Gateway customary name and logo, and such other trademarks as Payment Gateway may from time to time notify You to be “Payment Gateway Marks” within the meaning of this Agreement.

Trademark Restrictions

(a)Each party shall comply with all standards with respect to the other party's Trademarks which may be furnished by such party from time to time and all uses of the other party's Trademarks in proximity to the trade name, trademark, service name or service mark of any other person or entity shall be consistent with the standards furnished by the other party from time to time. Neither party shall create a combination mark consisting of one or more Trademarks of each party. All uses of the other party's Trademarks shall inure to the benefit of the party owning such Trademark. Each party hereby acknowledges and agrees that, as between the parties, the other party is the owner of the Trademarks identified as its Trademarks in any written notice provided to the other party pursuant to this Agreement. Either party may update or change the list of Trademarks usable by the other party hereunder at any time by written notice to the other party.

(b)Either party must include a statement of ownership when displaying or reproducing either parties trademark. The following statement is acceptable and shall be placed contiguous to the Trademark: “The trademark is the property of its respective owner.” (c)Except as otherwise provided herein, You shall not use, register or attempt to register any Payment Gateway Trademarks or marks or domain names that are confusingly similar to any of the Payment Gateway Trademarks, marks or Domain Name(s). Except as authorized in this agreement, You shall not take any actions inconsistent with Payment Gateway’s ownership of Payment Gateway’s Trademarks and any associated registrations or attack the validity thereof. You shall not use Payment Gateway’s Trademarks in any manner that would indicate You are using such Payment Gateway Trademarks other than as a licensee nor assist any third party do any of the same.

7.INTELLECTUAL PROPERTY AND PROHIBITION AGAINST REVERSE ENGINEERING

The parties agree that Payment Gateway owns and retains all right, title and interest in and to the Payment Gateway Services, Trademarks, copyrights, technology and any related technology utilized under or in connection with this Agreement, including but not limited to all intellectual property rights associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to You or any other entity or person under this Agreement. You shall not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of Payment Gateway Services or related technology.

8.PAYMENT TERMS

8.1 Due Date and ACH Authorization

(a)Payment Gateway fees shall begin on the Effective Date and You will be billed on the first business day of each month following the Effective Date for any and all amounts owing under this Agreement. If fees accrue to more than $50.00 USD at anytime in any given month, Payment Gateway will bill You the full amount due on a more frequent basis at Payment Gateway’s discretion.

(b)You must authorize Payment Gateway to initiate transaction entries to Your depositories account through ACH. This authority is to remain in full force and effect until i) Payment Gateway has received written notification from You of Your request for termination in such time as to afford Payment Gateway and Your depository institution a commercially reasonable opportunity to acknowledge and respond to the request and ii) Payment Gateway has collected all fees due and owing under this agreement. If Payment Gateway is unable to collect amounts owing from your depository account, You hereby authorize Payment Gateway to charge Your credit card for any and all amounts owing to Payment Gateway under this Agreement. Entries initiated to or from Your depository account will be in accordance with the rules of the National Automated Clearing House Association (NACHA) and/or any other regulatory body or agency having jurisdiction over the subject matter hereof.

(c)You must promptly update Your account information with Payment Gateway or Affiliate Partner with current and accurate information. If

You fail to provide Payment Gateway or Affiliate Partner with current and accurate depository account or credit card account information, Payment

Gateway may immediately discontinue providing Payment Gateway Services to You, without liability, until such information is provided to Payment Gateway and/or terminate this Agreement. You acknowledge that any change in account information may not be effective until the month following the month in which Payment Gateway receives such notice. Termination of Your authorization shall result in termination of any and all Payment Gateway Services. 8.2 Affiliate Partner Bills You

In furtherance of Section 8.1, if You are billed by an Affiliate Partner for some or all of the Fees, You shall pay the Affiliate Partner in such manner as mutually agreed upon between You and such Affiliate Partner. 9. FEES

9.1Payment Gateway Service Fees

(a)You shall pay to Payment Gateway the fees as set forth in the Fee Schedule provided to You by Payment Gateway and/or, if applicable Affiliate Partner. The Fee Schedule is hereby incorporated into the terms of this Agreement by reference. (b)Notwithstanding the foregoing, if Your relationship with the Affiliate Partner that offered you the Payment Gateway Services expires or terminates and such Affiliate Partner was billing You for certain Fees, then You may continue using the Payment Gateway Services. If You elect to continue using the Payment Gateway Services, You acknowledge and agree that Payment Gateway may begin to bill You for such Fees in the amounts that the Affiliate Partner had been charging You. In accordance with Section 15.5 Payment Gateway may amend the Fee schedule after providingYou with thirty (30) days notice.

9.2Other Fees and Charges

(a)You shall incur a late fee in the amount set forth in the fee schedule if any amounts due to Payment Gateway under this Agreement are not paid on or before the tenth (10^th) day following the date when due. In addition, You shall be subject to a finance charge equal to one and onehalf percent (1.5%) per month or the highest rate allowable by law, whichever is less, determined and compounded daily from the date due until the date paid. Payment of such late fee(s) and finance charge(s) will not excuse or cure any breach or default for late payment. Payment Gateway may accept any check or payment from You without prejudice to its rights to recover the balance due or to pursue any other right or remedy. No endorsement or statement on any check or payment or any correspondence accompanying any check or payment or elsewhere will be construed as an accord or satisfaction.

(b)On each occurrence when Payment Gateway is unable to collect fees on Your Account for any reason, including but not limited to insufficient funds, closed account, or any other negative response, Payment Gateway may charge You a Return Payment Fee in the amount of $25.00 USD, or as set forth in the fee schedule.

(c)If You have not paid all owing amounts after two (2) days when due, Payment Gateway may, in its sole discretion, discontinue providing You with Payment Gateway Services. If You have still not paid all owing amounts after thirty (30) days following the date the payment was due, then Payment Gateway may, in its sole discretion, immediately terminate this Agreement. Notwithstanding, if You subsequently pay in full all owing fees, including but not limited to late fees, finance charges and Return Payment Fees, and if Payment Gateway has not already terminated this Agreement, then Payment Gateway may elect to reactivate the Payment Gateway Services and charge You a Service Reactivation Fee in the amount set forth in the fee schedule.

(d)You agree to pay all costs and expenses of whatever nature, including attorneys' fees, incurred by or on behalf of Payment Gateway in connection with the collection of any unpaid charges and fees.

10.TERMINATION

10.1 Termination by You

(a)You may terminate this Agreement with or without cause, and for any reason, by providing Payment Gateway with at least thirty (30) days written notice of Your intent to terminate this Agreement. 

(b) In the event You are billed by an Affiliate Partner in furtherance of Section 8.2 of this Agreement, you hereby authorize Affiliate Partner to terminate this Agreement on your behalf. 

10.2 Termination by Payment Gateway

(a)Payment Gateway may terminate this Agreement and/or terminate Your use of Payment Gateway Services immediately, or at anytime, without advance notice and with or without cause, for any reason including without limitation to Your breach or default of any obligation set forth in this Agreement or if Payment Gateway determines, in its sole discretion, that Your business practices are detrimental to the achievement of Payment Gateway’s business objectives.

(b)In such event, Payment Gateway shall provide You with a written or electronic notice of termination.

10.3 Termination by Affiliate Partner or Third Party Service Provider

(a)In the event You are billed by an Affiliate Partner in furtherance of Section 8.2, and if Payment Gateway receives notice from such Affiliate Partner that it has terminated or suspended its relationship with You, Payment Gateway may suspend and/or terminate Your right to use Payment Gateway Services and/or terminate this Agreement without notice and without liability.

(b)In the event Payment Gateway is notified by a Third Party Service Provider, court of competent jurisdiction, governmental body or authority, Acquiring Bank or the Card Association that You are no longer entitled to receive payment data for any reason whatsoever, Payment Gateway may suspend and/or terminate Payment Gateway Services and/or this Agreement without notice and without liability.

10.4 Effect of Termination and Survival

Upon termination of this Agreement for any reason whatsoever, all rights and interests under this Agreement shall be extinguished and shall be given no further force nor effect except that i) all accrued payment obligations hereunder shall survive such expiration or termination; and (ii) the rights and obligations of the parties under Sections 7, 10.4, 11, 12, 13, 14 and 15 shall survive termination. 

11.CONFIDENTIALITY AND NONDISCLOSURE

11.1 Use of Confidential Information

(a) Each party that receives information (the “Receiving Party”) from the other party (the “Disclosing Party”) agrees to use reasonable best efforts to protect all non-public information, trade secrets and know-how of the Disclosing Party that is either designated as proprietary and/or confidential or that, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and in any event, to take precautions at least as great as those taken to protect its own Confidential Information of a similar nature. Each party agrees that the terms and conditions of this Agreement will be Confidential Information, provided that each party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business. (b) Each Party agrees not to divulge any confidential information, trade secrets or know how or any information derived therefrom to any third person or entity and shall only disclose Confidential Information to employees on a “need to know” basis who have executed a nondisclosure agreement with similar terms and obligations to this Agreement.

(c) Each Party shall not make any use whatsoever at anytime of such Confidential Information except as contemplated by this Agreement. (d) Each Party shall not copy or reverse engineer any such Confidential Information.

11.2 Exclusions

The foregoing restrictions will not apply to any information that:

(i) the Receiving Party can document it had in its possession prior to disclosure by the Disclosing Party, (ii) was in or entered the public domain through no fault of the Receiving Party, (iii) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality, (iv) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed), or (v) is independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party. Upon request of the other party, or in any event upon any termination or expiration of the Term, each party will return to the other all materials, in any medium, that contain, embody, reflect or reference all or any part of any Confidential Information of the other party. Each party acknowledges that breach of this provision by it would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section 11.

12.REPRESENTATIONS AND WARRANTIES

12.1 Mutual Representations and Warranties

Each party represents and warrants to the other that (i) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; (ii) the party's obligations under this Agreement do not violate any law or breach any other agreement to which such party is bound; (iii) it has all necessary right, power and ability to execute this Agreement and to perform its obligations therein; and (iv) no authorization or approval from any third party is required in connection with such party's execution, delivery or performance of this Agreement.

12.2 Your Representations and Warranties

(a)You represent and warrant that You are engaged in a lawful business that includes the sale of products and/or services, and are duly licensed to conduct such business under the laws of all jurisdictions in which You conduct business. You further represent and warrant that all statements made by You in this Agreement, or in any other document relating hereto by You or on Your behalf, are true, accurate and complete in all material respects. You hereby authorize Payment Gateway to investigate and confirm the information submitted by You herein. For this purpose, Payment Gateway may utilize credit bureau / reporting agencies and / or its own agents.

(b)You will comply with all applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction. You will further comply with the Payment Card Industry Data Security Standard (PCI DSS), the Gramm-Leach- Bliley Act, the National Automated Clearing House Association (NACHA) and any other regulatory body or agency having jurisdiction over the subject matter hereof.

(c) You will abide with all material terms of the then current policies, procedures, and guidelines of Payment Gateway governing the Payment Gateway Services.

12.3 Payment Gateway Representations and Warranties (a)Payment Gateway represents and warrants that the Payment Gateway Services provide to you hereunder will substantially conform to the specifications as set forth in the applicable Payment Gateway Service Level Agreement (SLA) as contained in Appendix A hereof and as may be amended from time to time in Payment Gateway’s sole discretion. In addition to the exclusions contained in Appendix A, the SLA will not apply if (i) a defect has been caused by Your malfunctioning equipment or software, (ii) the Payment Gateway Services are used in material variation with this Agreement or the applicable documentation, or (iii) any of the Payment Gateway Services have been modified by any individual or entity other than Payment Gateway.

(b)You acknowledge that Payment Gateway Services are designed for use with certain third-party programs, including, without limitation, certain Internet browser software programs. You will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Payment Gateway makes no warranty, express or implied, with regard to any such third-party software.

You may not rely on the representation or warranty regarding Payment Gateway Services by any third party in contravention of the foregoing statements, including representations or warranties of any Third Party Service Provider or Affiliate Partner. In the event of a breach of the foregoing warranty, Payment Gateway shall use commercially reasonable efforts to repair, or at its option replace, the Payment Gateway Services. You acknowledge that Payment Gateway does not warrant that such efforts will be successful. If  Payment Gateway’s efforts are not successful,

You may terminate this Agreement in accordance with Section 10.1. THE FOREGOING SHALL CONSTITUTE YOUR SOLE REMEDY,

AND PAYMENT GATEWAY’S SOLE LIABILITY, FOR INTERRUPTIONS, OUTAGES OR OTHER DELAYS IN PAYMENT GATEWAY’S SERVICES AND/OR VALUE-ADDED SERVICES. Payment Gateway does not warrant the services of any third party, including without limitation Third Party Service Providers, Affiliate Partners, VARS or the Card Association.

12.4 Payment Gateway Services “As Is” Disclaimer

PAYMENT GATEWAY SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS

OR WARRANTIES. PAYMENT GATEWAY DOES NOT REPRESENT OR WARRANT THAT THE PAYMENT GATEWAY SERVICES

WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR

FREE. YOU MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE PAYMENT GATEWAY SERVICES

BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING, BUT NOT LIMITED TO

REPRESENTATIONS BY THIRD PARTY SERVICE PROVIDERS OR AFFILIATE PARTNERS, EXCEPT AS SET FORTH IN THE

SERVICE LEVEL AGREEMENT CONTAINED IN APPENDIX A OF THIS AGREEMENT. PAYMENT GATEWAY SPECIFICALLY

DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS OR IMPLIED ARISING BY

STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED

TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,

OR TITLE WITH RESPECT TO THE PAYMENT GATEWAY SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS

AGREEMENT. YOU UNDERSTAND AND AGREE THAT PAYMENT GATEWAY SHALL BEAR NO RISK WITH RESPECT TO YOUR

SALE OF PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD, ACH FRAUD, CHECK FRAUD OR CHARGEBACKS.

12.5 Disputes

The parties shall promptly investigate any disputes under this Agreement. If the disputed amount is less than five percent (5%) of the total fees invoiced by Payment Gateway for the relevant billing statement, the total amount invoiced shall be due and payable on or before the due date. If the amount in dispute is greater than five percent (5%) of the total fees invoiced by Payment Gateway for the relevant billing statement, the disputed amount may be withheld until the dispute is resolved. All disputes must be made in good faith and in writing within thirty (30) days of the billing statement date. Fees billed shall be deemed accepted where written objections are not lodged within thirty (30) days from the billing statement date. 

13.LIMITATION OF LIABILITY

13.1 Payment Gateway Disclaimers

(a)GATEWAY EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, WHICH

ARISES FROM OR RELATED TO ANY UNAUTHORIZED ACCESS TO YOUR FACILITIES OR TO YOUR DATA OR PROGRAMS

DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS OR DEVICES USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND PAYMENT GATEWAY'S REASONABLE CONTROL.

(b)PAYMENT GATEWAY EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE,

ARISING FROM OR RELATED TO: (I) YOUR FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE YOUR ACCOUNT(S);

(II) FRAUDULENT TRANSACTIONS PROCESSED THROUGH YOUR ACCOUNT(S); (III) DISRUPTION OF PAYMENT GATEWAY

SERVICES, SYSTEMS, SERVER OR WEB SITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS,

SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (IV) ACTIONS OR INACTIONS

BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A THIRD PARTY SERVICE PROVIDER OR AFFILIATE PARTNER, OR

AQUIRING BANK; OR (V) UNAUTHORIZED ACCESS TO DATA, CUSTOMER DATA INCLUDING BUT NOT LIMITED TO, CREDIT CARD NUMBERS AND OTHER PERSONALLY IDENTIFIABLE INFORMATION, TRANSACTION DATA OR PERSONAL INFORMATION BELONGING TO PAYMENT GATEWAY, YOU OR ANY THIRD PARTY.

(c) PAYMENT GATEWAY EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS FOR THE LEGITIMACY OF ORDERS FORWARDED

FROM YOU AND FOR ANY AND ALL CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM CONCLUSIONS DRAWN

FROM THE DATA PROVIDED BY ANY SERVICES PROVIDED BY PAYMENT GATEWAY, OR ANY SYSTEM OR PROGRAM

ASSOCIATED THEREWITH OR THE LIMITATION OF THE FUNCTIONING OF ANY PAYMENT GATEWAY SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH WHETHER IT IS OWNED BY PAYMENT GATEWAY OR OFFERED THROUGH A THIRD PARTY SERVICE PROVIDER OR OTHER ENTITY.

13.2.Payment Gateway Limitation of Liability

(a)UNDER NO CIRCUMSTANCES WILL PAYMENT GATEWAY OR ANY OF ITS PARENTS, AFFILIATES OR VENDORS, OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, AFFILIATES OR VENDORS, BE LIABLE

FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES HOWEVER OR WHENEVER

ARISING, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST

BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT, INCLUDING NEGLIGENCE, CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b)PAYMENT GATEWAY’S TOTAL LIABILITY TO YOU, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT

OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY PAYMENT GATEWAY PRODUCTS OR SERVICES,

SHALL NOT EXCEED THE AGGREGATE COMPENSATION PAYMENT GATEWAY RECEIVED FOR PROVIDING THE PAYMENT

GATEWAY SERVICES TO YOU DURING THE THIRTY (30) DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,500.00 USD, WHICHEVER IS LESS.

14.INDEMNIFICATION

14.1 Indemnification

(a)Payment Gateway shall defend, indemnify and hold You and any of Your officers, directors, agents and employees harmless from and against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by You, arising out of or relating to any alleged infringement of a U.S. patent of any other entity or person by Payment Gateway.

(b)Payment Gateway’s obligations in Section 14.1.a do not apply if Payment Gateway Services or portions or components thereof (a) are modified by persons or entities other than Payment Gateway if the alleged infringement relates to such modification; (b) are combined with other products, processes or materials not supplied or recommended by Payment Gateway where the alleged infringement relates to such combination, or (c) continue to be used after Payment Gateway has made a non-infringing version available to You (collectively, “Your Faults”). If Payment Gateway Services or any component thereof becomes, or in Payment Gateway’s opinion is likely to become, the subject of a claim of infringement, then

You shall permit Payment Gateway, at Payment Gateway’s sole option and expense, either to (i) procure for You the right to continue using the Payment Gateway Services as permitted in this Agreement, or (ii) replace or modify the affected Payment Gateway Services or infringing component so that it becomes non-infringing. If, after using commercially reasonable efforts, Payment Gateway is unable to cure the infringement, either party may terminate this Agreement upon notice to the other, as provided in Section 10. Notwithstanding the above, Payment Gateway’s total liability shall not exceed the amount as stated in Section 13.2.b. THIS SECTION 14.1.b STATES THE ENTIRE LIABILITY OF PAYMENT GATEWAY

TO YOU WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY PAYMENT GATEWAY SERVICES.

14.2Indemnification by You

You shall defend, indemnify, and hold harmless Payment Gateway and its Affiliate Partners, Third Party Service Providers, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by Payment Gateway, arising out of or relating to (a) any breach or alleged breach by You of any representation, warranty, or obligation of You set forth in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by You or any of Your employees, agents or customers; (c) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by You to Payment Gateway; (d) payment card transactions submitted by You to Payment Gateway and rejected by Payment Gateway or an issuing bank; (e) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from Your Fault; (f) claims by Your customers, including, without limitation, claims relating to the disclosure of consumer data; (g)any alleged or actual violation by You of any applicable laws, regulations or rules of (i) the Credit Card Associations; (ii) the Gramm Leach Bliley Act; (iii) or any regulatory body or agency having jurisdiction over the subject matter hereof; or (h) any violation of Payment Gateway’s then current policies or guidelines. In the event You cause fines and/or penalties to be charged to Payment Gateway by the Credit Card Associations or any other entity, you agree to immediately reimburse Payment Gateway for said fines and penalties.

14.3Indemnification Procedure

The obligations of each party (“Indemnitor”) under this Section 14 to defend, indemnify and hold harmless the other party (“Indemnitee”) shall be subject to the following: (a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this section to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnitee may participate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice Indemnitee in any way.

14.4Exceptions

If You are an agency or instrumentality of a state of the United States and are precluded by the law of Your state from entering into indemnification obligations, then the obligations under Sections 14.2 and 14.3 shall apply only to the extent permitted by such state law.

15.GENERAL PROVISIONS

15.1Non-exclusivity

Each party acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein.

15.2Notices

All notices to You shall be given electronically, sent to the electronic mail address provided by or for You during registration for the Payment Gateway Services and/or posted in the Merchant Control Panel of Your Account. Any termination notice to Payment Gateway shall be given electronically by sending an e-mail to [email protected] from within the Merchant Control panel of Your account. All other notices to Payment Gateway shall be given electronically to [email protected] with a written copy to Network Merchants LLC (NMI) Legal Department, 201 E. Main St , Roselle, IL 60172 or to 888-829-3631 (fax), Attention: General Counsel. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid.

15.3Relationship of the Parties

The parties are independent contractors and nothing in this Agreement shall make them joint venturers, partners, employees, agents or other representatives of the other party. Neither party shall make any representation that suggests otherwise. You further recognize that if you contracted for the Payment Gateway Services with an Affiliate Partner or Third Party Service Provider, such provider is an authorized reseller of Payment Gateway only and is not a joint venturer, partner, or agent of Payment Gateway.

15.4Assignment

You will not have the right or the power to assign any of Your rights or delegate the performance of any of Your obligations under this Agreement without the prior written consent of Payment Gateway, including in the case of a merger. Payment Gateway will have the right to assign this Agreement to its successors and/or assigns, subsidiaries, affiliates, Affiliate Partners and/or Third Party Service Providers.

15.5Amendment and/or Modifications

No amendment, modification, or change to any provision of this Agreement, nor consent to any departure by either party therefrom, will in any event be effective unless the same will be in writing and signed by the other party, and then such consent will be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, Payment Gateway may amend this Agreement at any time upon written or electronic notice or post notice on its Web site located to You at:http://tib.finance. of not less than ten (10) days prior to the effective date of such amendment; provided that the addition or change of service fees, will become effective upon at least thirty (30) days’ notice. If You do not agree to such amendments, your sole remedy is to immediately terminate this Agreement upon written notice to Payment Gateway.

15.6Waiver

The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.

15.7Dispute Resolution

Any dispute or claim arising out of or relating to this Agreement, except claims involving intellectual property and claims for indemnification, will be resolved by binding arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) rules, as modified by this Agreement, and will take place in Chicago, Illinois, unless the Parties mutually agree to hold the proceedings elsewhere. This Agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. An arbitrator may not award relief in excess of or contrary to what this Agreement provides or order consolidation or arbitration on a class wide or representative basis, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither Party may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. All administrative fees and expenses will be divided equally between the Parties, but each Party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration. IF FOR ANY REASON THIS ARBITRATION CLAUSE IS DEEMED INAPPLICABLE OR INVALID, THE PARTIES WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE ANY CLAIMS ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. No action, regardless of form, arising out of or in conjunction with the subject matter of this Agreement, except for claims involving intellectual property and claims for indemnification, may be brought by either Party more than one (1) year after the cause of action arose.

15.8Severability;Headings

If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.

15.9Force Majeure

Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services or other catastrophes or any other occurrences which are beyond such parties' reasonable control (each a “Force Majeure Event”), provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event. 15.10 Governing Law;Jurisdiction

This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Illinois, without reference or giving effect to its conflicts of law principles. You hereby irrevocably consent to the personal jurisdiction of and venue in the state and federal courts located in DuPage County, Illinois with respect to any action, claim or proceeding arising out of or related to this Agreement and agree not to commence or prosecute any such action, claim or proceeding other than in such courts, except as otherwise provided in Section 15.7 above.

15.11 Entire Agreement

This Agreement together with all of Payment Gateway’s policies referenced herein sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. You acknowledge that this Agreement reflects an informed, voluntary allocation between Payment Gateway and You of all risks (both known and unknown) associated with Payment Gateway Services. 15.12 Survival

The provisions of this Agreement relating to any fees or other amounts owed, payment of finance charge on unpaid fees, confidentiality, warranties, limitation of liability, indemnification, governing law, severability, headings and this paragraph shall survive termination or expiration of this Agreement.

Appendix A - PAYMENT GATEWAY SERVICE LEVEL AGREEMENT

This Service Level Agreement (“SLA Agreement”) sets forth the SLA applicable to the various Payment Gateway Services ordered by You and provided through Payment Gateway. This SLA provides Your sole and exclusive remedies for any Service interruptions, deficiencies, or failures of any kind. If such remedies include service credits, the parties agree that such credits constitute liquidated damages. No otherwise applicable SLA, including any remedies hereunder, shall apply with respect to any Excluded Events.

The following Service Level Targets apply to the Services.

AVAILABILITY Service Level Target

For transaction processing services, this SLA provides that the Payment Gateway Application will be available 99.5% of the time (averaged over the calendar month). You will be eligible for service credits as set forth in the following table if this Availability Target is not met due to Outages.

Cumulative Duration of Outages within a Calendar Month which exceed the Availability Target	Credit
10 minutes through 60 minutes	1/30th of MRFC for Affected Service
Each full hour in excess of 60 minutes	1/30th of MRFC for Affected Service

LATENCY Service Level Target

This SLA provides for monthly average response time Latency as set forth in the following table. If the monthly average Latency through the

Payment Gateway Application exceeds the Targets set forth in the following table, You will be eligible for a service credit of 3/30^th of the applicable MRFC for the Affected Service.

Definitions

“MRFC” Monthly Recurring Fixed Charge means any and all fees You are obligated to pay to Payment Gateway including Your monthly commitment and fixed Service charges.

“Affected Service” means only the portion of a Service actually impacted by the relevant Service Level Target.

“Availability” means the percentage of time during a month in which the Payment Gateway application is not subject to an Outage.

“Latency” means the monthly average time it takes for a transaction to travel through the relevant portion of the Payment Gateway Application excluding transaction settlements and any time waiting for a response from a third party.

“Outage” means any period of at least one minute during which the Payment Gateway Application is completely unavailable or inaccessible for reasons other than an Excluded Event. An Outage begins when Payment Gateway opens the relevant trouble ticket and ends at the earlier of the restoration of the Affected Service or when the ticket is closed. All Outage measurements will be rounded to the nearest one minute increment.

“Payment Gateway Application” means the components owned and operated by Payment Gateway excluding any components that are not owned and operated directly by Payment Gateway.

“Excluded Events” means any event that adversely impacts the Service that is caused by (a) the acts or omissions of You, Your employees, customers, contractors or agents; (b) the failure or malfunction of equipment, applications or systems not owned or controlled by Payment Gateway; (c) Force  Majeure events; (d) scheduled maintenance, alteration or implementation; (e) any suspension of Service pursuant to the Merchant Service Agreement; or (f) the unavailability of Your required personnel, including as a result of failure to provide Payment Gateway with accurate, current contact information.

Process

You must request any credit due hereunder within 30 days of the conclusion of the month in which it accrues. You waive any right to credits not requested within this 30 day period. Credits will be issued once validated by Payment Gateway and applied toward the invoice which You receive no later than two months following Your credit request. All performance calculations and applicable service credits are based on Payment Gateway records and data.

Limitations

This SLA does not apply to any Excluded Events, as defined in this SLA. You will not be eligible to accrue any otherwise applicable service credits: (a) during any period in which You are in violation of the Payment Gateway Merchant Service Agreement or is past due on any amounts owed in connection with the Payment Gateway Services; and (b) before the start of the first full calendar month following the Billing Commencement Date for the Affected Service. You may not carry over to subsequent months any service credits subject to the limits or exclusions of this SLA.

In no event will the credits accrued in a single month exceed, in the aggregate across all service levels and events: thirty percent (30%) of the invoice amount for the Affected Service.

You acknowledge that Payment Gateway manages its throughput in part on the basis of Your utilization of Service and that changes in such utilization may impact Payment Gateway’s ability to manage throughput. Therefore, notwithstanding anything else to the contrary, if You significantly change Your utilization of the Service and such change creates a material and adverse impact on the volume through the Payment Gateway Application, as determined by Payment Gateway, Payment Gateway may either modify the applicable charges or terminate the Affected Services.

Appendix B - VALUE-ADDED SERVICES

In the event You enroll in, and Payment Gateway provides You with, Value-Added Service(s), You agree as follows: 1. Expansion of Services

The terms “Services” and “Payment Gateway Services,” as each is defined in the Agreement, shall include each of the Value-Added Services. Each Value-Added Service is described on the Payment Gateway Web site and in other Services Documentation provided to You from time to time. All terms of the Agreement applicable to the Payment Gateway Services shall be applicable to each Value- Added Service.

2.Your Obligations

In addition to Your obligations set forth in the Agreement, You agree to pay the Value-Added Service Fees, in accordance with Section 8 and Section 9 of this Agreement, in the amounts provided in the Fee Schedule provided to You by Payment Gateway and/or, if applicable Affiliate Partner. The Fee Schedule is hereby incorporated into the terms of this Agreement by reference and/or in the Value-Added Service documentation page accessed during enrollment in the applicable Value-Added Service. By checking the “I ACCEPT” button next to a ValueAdded Service Fee schedule, You acknowledge Your acceptance of such fees, Your obligation to pay same and the terms and conditions applicable to the Value- Added Service.

3.Your Warranty

You represent, warrant, and covenant to Payment Gateway that Your use of the Value-Added Services and any information gathered by You in connection with use of a Value-Added Service: (a) will be fully compliant with all applicable local, state and federal laws, rules, and regulations; (b) will be in accordance with all applicable Services Documentation; and (c)will not be used for any purpose other than in connection with the Value-Added Service.

4.Acknowledgement

You understand, acknowledge, and agree that (a) You will be solely responsible for ALL transactions processed through Your payment gateway account(s), regardless of whether such transactions are monitored by a Value-Added Service; (b) You will be solely responsible for Your use of the Value-Added Service including, without limitation (i) configuring, maintaining and updating, as You deem necessary, the applicable settings for Your Value-Added Service account; and (ii) with respect to each Transaction processed via your account(s), and regardless of any data, analysis, or information generated or not generated by the Value-Added Service, as applicable, determining the appropriate action for each such Transaction (i.e., approve, void, decline, reject); (c) under certain circumstances, it may be necessary for Payment Gateway to adjust Your Value-Added Service security settings, with or without notice to You, to guard against fraudulent activity and that such actions may inadvertently cause legitimate transactions to expire, be rejected or delayed; and (d) Payment Gateway shall not be liable under any theory of law, including negligence, for any loss associated with any of the foregoing.

5.PAYMENT GATEWAY WARRANTY

IN ADDITION TO ANY LIMITATIONS OR DISCLAIMERS SET FORTH IN THE AGREEMENT, YOU UNDERSTAND, ACKNOWLEDGE

AND AGREE THAT THE VALUE-ADDED SERVICES ARE PROVIDED TO YOU BY PAYMENT GATEWAY “AS IS” AND THAT

PAYMENT GATEWAY DOES NOT REPRESENT OR WARRANT THAT THE VALUE ADDED SERVICES OR ANY OTHER

TECHNOLOGY, CONTENT, INTELLECTUAL PROPERTY, OR ANY OTHER INFORMATION, DATA, PRODUCTS, OR SERVICES,

WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE, AND THAT

YOUR SOLE REMEDY FOR ANY ISSUE RELATED TO OR ARISING FROM THE VALUE ADDED SERVICES, AND PAYMENT GATEWAY'S SOLE LIABILITY FOR SAME, WILL BE TO TERMINATE THIS AGREEMENT AND DISCONTINUE YOUR USE OF THE VALUE-ADDED SERVICES.

6.Risk, Security and Disclosure

The risk and security suggestions provided to You in the Services Documentation for any of the Value-Added Services are solely for illustrative purposes to show best industry practices, and You shall be solely responsible for choosing the appropriate settings and parameters for Your account.

7.Termination

If Your Agreement is terminated for any reason, Payment Gateway shall immediately cancel access to Your Value-Added Service account. It is Your responsibility to download all reports prior to the effective date of any such termination as such reports will not be available following the termination date.

8.Incorporation by Reference

The Value-Added Services Fee Schedules are incorporated herein by reference.

9.Third Party Programs

Payment Gateway makes no warranty, express or implied, with regard to any third party services or software.

10.Definitions

All terms and conditions of the Agreement not specifically modified in this Appendix B shall remain unchanged and in full force and effect. Unless separately defined herein, capitalized words used in this Appendix as defined terms shall have the same meanings herein as in the Agreement.

Appendix C - Prohibited Activities.

  You agree that You will not at any time conduct Your business in any manner that directly or indirectly offers, sells, leases, licenses or displays, delivers, advertises, recommends, or promotes any product(s), service(s), data, information, image(s), text and/or any content which:

(i)is unlawful or violates any applicable local, state, federal, national or international law, statute, ordinance, or regulation including, without limitation, Credit Card Association rules, consumer protection laws, unfair competition, antidiscrimination or false advertising;

(ii)is associated with any illegal form of adult, sexually oriented, or obscene materials or services, including without limitation, any material clearly designed to sexually arouse the viewer/reader with images of children less than 18 years old and/or escort services;

(iii)infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party, including, but not limited to, the unauthorized copying and posting of trademarks, pictures, logos, software, articles, musical works and videos;

(iv)is threatening, abusive, harassing, defamatory, obscene, libelous, slanderous, deceptive, fraudulent, invasive of another's privacy, tortuous, or otherwise violate Payment Gateway’s rules or policies;

(v)victimizes harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;

(vi)impersonates any person or entity;

(vii)contains harmful content, including, without limitation, software viruses, Trojan horses, worms, time bombs, cancel bots, spy-ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, surreptitiously intercept or expropriate the Services or any system, program, data or personal information or limit the functioning of any software, hardware, or equipment or to damage or obtain unauthorized access to any data or other information of any third party;

(viii)violates any U.S. export or import laws, including, without limitation, the Export Administration Act and the Export Administration Regulations maintained by the Department of Commerce;

(ix)offers or disseminates fraudulent goods, services, schemes, or promotions (i.e., make money fast schemes, chain letters, pyramid schemes) or engage in any unfair deceptive act or practice;

(x)is associated with any form of illegal gambling or illegal lottery type services;

(xi)is associated with illegal telecommunications or illegal cable television equipment or illegal satellite equipment;

(xii)is associated with electronic wallets (i.e., “e-wallets”) or any similar payment type; or is associated with the sale of (a) any controlled drug that requires a prescription from a licensed practitioner unless you are authorized by the National Association of Boards of Pharmacy to offer such products as a Verified Internet Pharmacy Practice Site and only if such a prescription has been issued by the practitioner after a bona fide examination of the patient; or (b) any over-the- counter drug, unless the sale of such product, without a prescription, has been approved by the Food & Drug Administration; or (c) nonprescription drugs that make false or misleading treatment claims or treatment claims that require FDA approval; or (d) any drug or controlled substance that Payment Gateway believes to be or may become harmful, unlawful, or prohibited. Payment Gateway requires sellers of prescription drugs to abide by all laws applicable to both the buyer and seller and may require you to provide evidence of compliance with these requirements. In addition, due to the complexities of current laws regulating the importation of controlled drugs into the United States, you may not use the Services to sell prescription drugs that are imported into the United States from an international location. The foregoing list is a non- exhaustive list of prohibited goods and services.                                NMI Payment Gateway Merchant Service Agreement Last Revised September 12, 2013 CONFIDENTIAL

EXHIBIT 17FURTHER TERMS APPLICABLE TO ISRAEL-BASED MERCHANTS

1.References herein to ‘Acquirer’ shall include Isracard Ltd., and its subsidiaries (‘Isracard’) and any other relevant Israel-based Acquirer. 

2.Israel Merchants that are boarded with an Acquirer in Israel shall also be deemed to contract directly with Tib Finance Payment Services Israel Ltd., a payment services provider authorized by the Capital Market, Insurance and Savings Authority of the State of Israel. 

3.Provision of Services to Merchant by Tib Finance Payment Services Israel Ltd. shall be subject to Merchant passing Tib Finance’s standard underwriting, onboarding and KYC/AML/CTF processes. 

4.Merchant shall not enter into transactions that are contrary to law or public policy, that are not in Merchant’s own name and recorded in its books of account, that are suspicious, or were the party making the transaction is not the actual cardholder, or the payment card or instrument is stolen, fake, counterfeit or there is a reasonable suspicion thereof, or that the transaction is not made with the owners free will. In the case of reasonable suspicion of any such transaction, shall decline the transaction and shall report the matter to Tib Finance without delay. 

5.Where so directed by an Acquirer, Tib Finance may set new or additional restrictions or requirements relating or to the permissibility of transactions, products and services.  

6.Transactions may not exceed the permitted maximum sums from time to time in force with respect to the Acquirer and/or Card Associations. Acquirer and Card Associations shall have sole discretion to set such limits and Tib Finance and Merchant shall be bound thereby. Above certain set transaction volumes Merchant may be required to enter into a direct agreement with Isracard or an alternative Acquirer, in order for Tib Finance to be able to continue to provide the Services or part thereof. 

7.Merchant understands and accepts that the sole responsibility for the Services and payout to the Merchant applies only to Tib Finance, and that Isracard is not a party to this Agreement between Merchant and Tib Finance. 

8.Tib Finance may set requirements for additional financial security measures relating to Merchant including Reserves as directed by Acquirer.

9.Unless given specific prior approval by Acquirer, Merchant shall not pass any transaction that shall provide an accumulated balance or credit in favor of a card holder. 

10.As directed by Acquirer, Tib Finance may pass through charges for cancelled or rejected transactions without prior notice to Merchant.

11.Tib Finance may change dates and frequency of payout to Merchant upon 30 days’ notice, or shorter notice period as practicable if such change is directed by Acquirer. Changes including increases of fees, set by an Acquirer, Card Association or due to a change in regulations or law, shall become effective on 30 days’ notice, or such shorter notice period as practicable if the changes are required to come into more immediate effect. 

12.Merchant shall provide relevant documentation and/or records as may reasonably be required by Acquirer, Card Association or Tib Finance within 7 days of request in connection with any dispute or transaction relating to Merchant and its customers under this agreement.

13.A Card Association and/or Acquirer may instruct or Tib Finance may itself suspend or terminate all Services hereunder as it sees fit in the event of any of the following: 

a)Breach of this agreement by Merchant.

b)Material misstatement by Merchant;  or provision of incorrect information that is not rectified within 7 days of request. 

c)Merchant is subject to an enforcement order in respect of any debt or judgment. 

d)Merchant undergoes a significant change in the composition, structure or nature of its business, including but not limited to its funding, ownership, indebtedness and/or contractual obligations and including any change in majority ownership or voting rights. 

e)If Merchant suspends its effective commercial operations for a period exceeding 14 days. 

f)The occurrence of any event which in the sole discretion of the Acquirer or Card Association may materially impair the Merchant from meeting its obligations under this Agreement. 

g)In the event of death, disqualification, imprisonment, intention to leave Israel by any owner of the Merchant that in the sole discretion of the Card Association or Acquirer, may materially affect the Merchant’s business. 

h)Merchant is no longer designated as an active business or company in its financial accounts. 

i)If Merchant’s bank rejects any authorized debit of its account under this Agreement by a Card Association, Acquirer or Tib Finance. 

j)If in the reasonable discretion of a Card Association, Acquirer or Tib Finance any security or collateral provided by Merchant becomes devalued and no additional security is provided by Merchant to cover such reduction in value. 

k)In the event any Card Association demands termination of this Agreement for whatever reason, or Acquirer is no longer qualified or able to provide services to any relevant Card Association or Tib Finance and/or Merchant as envisaged by this Agreement. 

l)In the event that there are material issues of legal compliance in respect of Merchant. 

Merchant undertakes to notify Tib Finance immediately should it become aware of the occurrence of any of the aforesaid grounds for suspension or termination. 

14.A Card Association, Acquirer or Tib Finance may withhold payment of funds to Merchant if in its sole discretion there are grounds to believe that one of the above causes for immediate suspension or termination of service may occur and/or that in the case of a Card Association or Acquirer there are grounds to believe Merchant may violate its obligations under this Agreement. 

15.Tib Finance’s rights of indemnification by Merchant under this Agreement shall include costs or damages caused to or claimed by Acquirer, including Acquirer’s reasonable legal expenses, with respect to any claim made against Acquirer by an End Customer due to Merchant’s default.  

16.If Merchant’s account is credited with an excess amount, Tib Finance may make the necessary deduction of funds to correct any overpayment.

17.Tib Finance may immediately apply any set off or deduction of funds, or additional Reserve as demanded by a Card Association, Acquirer in respect of Merchant. Tib Finance shall subsequently provide details of such action to Merchant. 

18.Tib Finance may immediately apply any set off or deduction of funds, or additional Reserve as demanded by a Card Association, Acquirer in respect of Merchant. Tib Finance shall subsequently provide details of such action to Merchant. 

19.Merchant shall ensure that End Customers are notified of its Refund and Cancellation policies prior to making an online payment. Tib Finance shall be entitled to withhold the credit of any payment to Merchant due to Merchant’s failure to provide such notice, and deduct any resulting costs caused to Tib Finance or Acquirer.  

20.Merchant shall reimburse Tib Finance immediately upon request for any amount that Tib Finance may be required to pay or refund to Merchant’s End Customer(s) or third party with respect to any dispute arising between Merchant and its End Customer(s). Tib Finance shall be entitled to deduct such sums from Merchant’s account balance. 

21.The provision of the Services shall be subject to customary work days and national holidays as applicable to the banking and financial services sector in Israel and restricted services may be available on national holidays in the US. Payout to Israel-based Merchant shall take place only between Mondays and Thursdays, and shall exclude Israel and US national and bank holidays, and unless otherwise agreed

in writing between the parties shall be discharged by Tib Finance to a current account of an Israeli bank recognized by the Bank of Israel.  

22.As between the parties, in the event of any conflict between these terms and the Tib Finance Merchant Agreement and/or Tib Finance Merchant Terms and Conditions, the terms of this Exhibit shall prevail.