Terms of Service

SUB-MERCHANT AGREEMENT

This Sub-Merchant Agreement (“Agreement”) is made and entered into as of the date last executed on the signature page hereto (“Effective Date”) indicated below by and between Pay Theory, Inc., with an address of 10549 Reading Road, Cincinnati, Ohio 45241 (“Pay Theory”), and the party identified on the signature page hereto (“Sub-Merchant”). Pay Theory and Sub-Merchant may be referred to herein individually as a “Party,” and collectively as the “Parties.” This Agreement includes and incorporates by reference any other documents or policies expressly referenced herein or in any addendum, exhibit, or incorporated document.

RECITALS

WHEREAS, Pay Theory is in the business of providing e-commerce card payment processing services, ACH disbursements, cash acceptance, as well as other related services and software (“Services”).

WHEREAS, Sub-Merchant, pursuant to this Agreement, desires for its customers (collectively, “Customers”) to be able to make payments to Sub-Merchant via utilization of the Services.

WHEREAS, Sub-Merchant acknowledges and agrees that certain Services provided by Pay Theory may rely on third-party vendors, including but not limited to processors, financial institutions, service providers and other third parties (“Third Party Providers”).

NOW THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as set forth herein.

ATTACHMENTS:

Exhibit A: Fee Schedule

Exhibit B: Third Party Terms

AGREEMENT

1. Use of Services

• Application to Use Services. Before using the Services, Sub-Merchant must execute this Agreement and provide all necessary information to Pay Theory to demonstrate satisfaction of the underwriting standards applicable to use of the Services, which may include information required by the Associations (as defined below), Third Party Providers, and various U.S. Federal Government agencies. Sub-Merchant hereby authorizes Pay Theory and, where required, Third Party Providers to obtain credit reports, to perform identity verification and any other necessary inquiries (including, but not limited to, credit reports for Sub-Merchant’s directors, officers, and principals), to review financial statements, and to conduct transaction-verification inquiries and any other inquiries reasonably necessary. During the Term, Pay Theory may request additional information from Sub-Merchant if required by the Associations, or in accordance with Pay Theory’s then-current processes and procedures or any Third Party Provider. Further, if Sub-Merchant’s processing volume exceeds certain limits set forth by the Associations, Sub-Merchant may be required to enter into a direct agreement with one or more Associations.
• License to Use Services. Subject to the provisions of this Agreement, Pay Theory hereby grants Sub-Merchant a revocable, nontransferable, limited license to use the Services. Sub-Merchant acknowledges that portions of the Services may not be available to Sub-Merchant due to restrictions imposed by any Third Party Provider, fraud risks, or other circumstances as solely determined by Pay Theory.
• Credentials. Sub-Merchant is responsible for maintaining the confidentiality of any credentials provided by Pay Theory to Sub-Merchant. Sub-Merchant will be fully responsible for all activities that occur through the use of such credentials. Sub-Merchant must notify Pay Theory immediately if Sub-Merchant believes the confidentiality of such credentials has been compromised or if Sub-Merchant suspects unauthorized use of such credentials. Pay Theory will not be liable for any loss or damage arising from the compromise or misuse of Sub-Merchant’s credentials.
• Third Party Providers. Sub-Merchant acknowledges and agrees that Pay Theory may provide any information about Sub-Merchant, whether directly provided by Sub-Merchant or collected through use of the Services by Sub-Merchant, to any Third Party Provider for the purpose of facilitating provision of the Services to Sub-Merchant. Sub-Merchant acknowledges that Third Party Providers may impose additional restrictions on the use of their services, software, and systems. Sub-Merchant agrees to comply with any terms, policies, or operational requirements imposed by such Third-Party Providers.
• Service Levels. Pay Theory will, directly or indirectly, provide ongoing training and technical support to Sub-Merchant (including error determination and resolution, assistance with installation, access, and use of the Services, and assistance with software and hardware issues) and use commercially reasonable efforts to remedy any customer service problems encountered by Sub-Merchant with regard to the Services. If such support services will be provided by a Third Party Provider, then Pay Theory will provide such Third Party Provider’s contact information to Sub-Merchant.

2. Customer Payments

• Card Acceptance. Sub-Merchant must honor, without discrimination, any valid payment card properly tendered by a Customer asserting to be the person in whose name the payment card is issued (“Cardholder”). Sub-Merchant may elect not to accept VISA or Mastercard branded payment cards or both but must provide Pay Theory with prior written notice of such election. If Discover or Diners Club network payment card (“Discover Cards”) acceptance or American Express network payment card (“Amex Cards”) acceptance is selected by Sub-Merchant (and, in each case, approved by Pay Theory and its Third Party Providers), then the attached Discover Card Acceptance Addendum and American Express Card Acceptance Addendum, respectively, as may be supplemented or modified by Pay Theory upon notice to Sub-Merchant from time to time, is expressly incorporated herein and will apply to transactions involving such cards. Sub-Merchant must properly disclose to the Cardholder, at the time of the transaction, Sub-Merchant’s name, return policy, and, if applicable, other limitations Sub-Merchant may have on accepting returned merchandise. Sub-Merchant’s refund policies for purchases made with a payment card must be at least as favorable as Sub-Merchant’s refund policy for purchases made with any other form of payment. Sub-Merchant will not accept any payments from a Cardholder relating to previous charges for merchandise or services, and if Sub-Merchant receives such payments, Sub-Merchant must promptly remit them to Pay Theory. Sub-Merchant may set a minimum transaction amount to accept a card, provided the minimum transaction amount does not differentiate between card issuers or Associations and the minimum amount does not exceed ten dollars.

In addition to this Agreement, Sub-Merchant shall also comply with the following rules and regulations, the terms of which are incorporated by reference herein. The operating regulations for each of the major payment networks can be accessed at the links below:

• Visa: usa.visa.com/merchants/operations/op_regulations.html
• Mastercard: https://www.mastercard.us/en-us/business/overview/support/rules.html
• American Express: www.americanexpress.com\merchantopguide
• Discover: https://www.discovernetwork.com/en-us/faq
• For transactions involving ACH, a copy of the NACHA operating rules and guidelines are available at www.achrulesonline.org.

• Card Authorization. Within 72 hours after initiating a transaction, but prior to completing it, Sub-Merchant must request an authorization for the transaction using equipment that meets the specifications Pay Theory requires. This authorization request must include Sub-Merchant’s name and account identifier, the payment card expiration date, the zip-code of the Cardholder’s billing address, and the total amount of the transaction, including taxes. Pay Theory may also require additional information in any such request, such as: (i) CVV2 code or the equivalent; (ii) a brief description of the goods or services involved; (iii) the transaction authorization number; and (iv) if applicable, adjacent to the signature line, a notation that all sales are final. When authorization is obtained, Sub-Merchant will be deemed to warrant the identity of the Customer as the Cardholder. Authorizations are not a guarantee of acceptance or payment of a transaction and do not waive any provision of this Agreement or otherwise validate a fraudulent transaction or a transaction involving the use of an expired payment card. For the avoidance of doubt, Pay Theory may refuse to authorize any transaction.
• Sales Transmittals. Sub-Merchant will retain a copy of the sales transmittal for the completed transaction in accordance with the Rules for 25 months or such longer period as the Rules or laws may require. Sub-Merchant will provide copies of sales transmittals and other transaction evidence to Pay Theory within three business days of any request or Pay Theory will have chargeback rights with respect to such transactions.
• Recurring Transactions. Sub-Merchant must obtain the Cardholder’s prior written consent for recurring transactions, including a description of the services or other product and the frequency and duration of the recurring charge, and notify the Cardholder that recurring billing charges may be canceled at any time. Sub-Merchant must retain evidence of such written consent for 24 months from the date Sub-Merchant submits the last recurring billing charge. Sub-Merchant will honor any Cardholder cancellation, and if Sub-Merchant’s access to the Services is terminated for any reason, Sub-Merchant will, at its cost, advise all Cardholders to whom it submits recurring billing charges that it no longer accepts the payment card(s) for amounts owed.

3. Authorizations

By entering into this Agreement, Sub-Merchant expressly authorizes Pay Theory to take the following actions on Sub-Merchant’s behalf as its designated agent for Services: (a) to establish a primary merchant account with a processor and sponsor bank of Pay Theory’s choosing; (b) to access data associated with Sub-Merchant’s business as such data may be available through Pay Theory’s system or platform, including without limitation, cardholder data, for purposes of providing Sub-Merchant with Services as described in the Agreement; (c) to execute documents on Sub-Merchant’s behalf, or to take any other action which Pay Theory deems reasonably necessary to provide the Services; (d) to access Sub-Merchant’s designated account(s) for purposes of initiating, processing, transmitting and settling transactions on Sub-Merchant’s behalf, together with any adjustments permitted by the Agreement; (e) to collect any fees owed to Pay Theory, or any of its affiliates or subsidiaries, directly from settlements tied to Sub-Merchant’s business location(s) and/or designated account(s); (f) to withhold amounts from Sub-Merchant’s settlements in satisfaction of lawful orders, garnishments and/or tax levies; (g) to recoup, retrieve, hold back or collect from any source of available funds, including without limitation, settlements, any amounts due to Pay Theory for returns, chargebacks, negative accruals, overdrawn accounts or outstanding Fees; (h) to collect any fees, charges or other amounts designated for third parties which Sub-Merchant has authorized (such as a vendor, supplier or other third party), in accordance with the Agreement; (i) to share information about Sub-Merchant with Pay Theory’s processor, the payment networks and/or the banks as reasonably related to the provision of Services; and (j) to take any other action described in or permitted by the Agreement. These authorizations shall remain effective for the duration of the Agreement and until Sub-Merchant’s financial obligations to Pay Theory have been satisfied, as reasonably determined by Pay Theory.

4. Prohibited Practices

• Sub-Merchant will not present for processing or credit, directly or indirectly, any transaction not originated as a result of a transaction directly between Sub-Merchant and a Cardholder or any transaction Sub-Merchant knows or should know to be fraudulent or not authorized by the Cardholder. Further, Sub-Merchant shall not present sales transactions which are produced as a result of sale made by any person or entity other than Sub-Merchant, or for any purposes related to any illegal or prohibited activity. Pay Theory will refer perpetrators of fraudulent transactions, in its discretion, to the appropriate law enforcement agency. Sub-Merchant must not honor any payment card that is expired.
• Sub-Merchant may not split transactions into multiple payment card transactions except where: (A) partial payment is entered on the transaction record and the balance of the transaction amount is paid in cash or by check at the time of transaction; or (B) the amount represents an advance deposit in a payment card transaction completed in accordance with this Agreement and the Rules.
• Sub-Merchant will not use the Services to accept amounts representing the refinancing of an existing uncollectible obligation, debt or dishonored check of a Cardholder. Sub-Merchant may not process transactions for, receive payments on behalf of, or (unless required by applicable law) redirect payments to a third party. Sub-Merchant must not use the Services for highrisk transactions or illegal activities.

5. ACH Processing

The Services enable Sub-Merchant to make and accept ACH payments (“ACH Services”), subject to the following, which terms control with respect to the ACH Services to the extent of any conflict with other provisions of this Agreement:

• Entries. Sub-Merchant authorizes Pay Theory to originate ACH credit or debit entries to a bank account (“Entries”). Sub-Merchant shall not have the right to cancel or amend an Entry after its receipt by Pay Theory or the Third Party Providers, except to void the transaction prior to settlement. Sub-Merchant must only submit Entries for bona fide transactions with Customers made in the ordinary course of business in accordance with this Agreement, the Rules, and applicable laws. Sub-Merchant must not request an Entry that violates the Rules or applicable laws. Sub-Merchant agrees not to initiate any Entries to or from a savings account or a foreign bank or the branch of a foreign bank in a U.S. territory. The term “foreign bank” does not include a U.S. agency or branch of a foreign bank, or an insured bank organized under the laws of a U.S. territory. Sub-Merchant warrants that no Entry delivered to Pay Theory or the Third Party Providers will cause Pay Theory or the Third Party Providers to be in violation of any law or regulation of the federal or applicable state governments. If an Entry describes a financial institution or the receiver of an Entry inconsistently by name and account or other identifying number, the account or other identifying number may be relied upon, and the name disregarded.
• Authorization. Sub-Merchant shall obtain and maintain appropriate authorizations in accordance with the Rules from each Customer for each ACH transaction. Sub-Merchant shall provide Pay Theory or the Third Party Providers with evidence of authorization upon request. Sub-Merchant shall maintain data sufficient to reconstruct the transaction authorization and maintain such authorization in accordance with all applicable laws, rules and regulations. Sub-Merchant agrees to provide upon request and to allow Pay Theory and the Third Party Providers to document and store ACH authorization, including timestamp, Sub-Merchant logo and applicable ACH credentials.
• Transaction Limits. Sub-Merchant shall operate and use the ACH Services in accordance with the limits approved by Pay Theory or the Third Party Providers.
• ACH Settlement. Sub-Merchant acknowledges that ACH rules make provisional any credit given for an Entry until final settlement. If final settlement does not occur or if a reversal occurs, Sub-Merchant agrees that it shall be responsible for any related refunds or associated costs and Pay Theory and the Third Party Providers shall be reimbursed by Sub-Merchant to the extent they are charged or pay such amounts. Pay Theory and the Third Party Providers may deduct such amounts from any payout to Sub-Merchant.
• Other Documents. Sub-Merchant agrees to complete and enter into all applicable documents required by Pay Theory in connection with the ACH Services.
• Termination of ACH Services. Sub-Merchant may opt out of the ACH Services at any time upon written request by Sub-Merchant without directly or indirectly affecting Sub-Merchant’s ability to use other components of the Services. Following any termination of this Agreement or the provision of ACH Services, Pay Theory and the Third Party Providers will retain access to each of Sub-Merchant’s bank accounts provided in connection with ACH Services for one calendar year to process chargebacks as may be required by NACHA.

6. Cash Payments

The Services enable Sub-Merchant to make and accept cash payment (“Cash Services”), subject to the following, which terms control with respect to the Cash Services to the extent of any conflict with other provisions of this Agreement:

• General Terms of Use. Sub-Merchant will have access to certain participating retail establishments that accept cash for walk-in payments (“Providers”) made by Customers. Sub-Merchant acknowledges and agrees that Providers’ locations may change from time to time and that its Customers may not have convenient access to any Provider. When a Customer makes a payment to a Provider such payment shall be deemed to have been a payment made to Sub-Merchant. Sub-Merchant and its Customers must only use the Cash Service for bona fide transactions between Sub-Merchant and its Customers made in the ordinary course of business in accordance with this Agreement and applicable laws. Sub-Merchant must provide Pay Theory with invoice information to identify bona fide transactions for which a Customer may make a payment to Sub-Merchant. Customers shall not be permitted to make a payment through the Cash Services except in connection with an invoice provided by Sub-Merchant. Sub-Merchant warrants that no payment made by its Customers will cause Pay Theory or the Third Party Providers to be in violation of any law or regulation of the federal or applicable state governments.
• Transactions. When a Customer makes a payment to a Provider, the Customer will be given a receipt for such payment. Sub-Merchant will receive documentation of the aggregate payments made by its Customers with respect to bona fide invoices on a given business day. Sub-Merchant shall maintain data sufficient to reconstruct transactions made to Sub-Merchant in accordance with all applicable laws, rules and regulations.
• Transaction Limits. Sub-Merchant shall operate and use the Cash Services in accordance with the limits approved by Pay Theory or the Third Party Providers.
• Settlement. Payments made to Sub-Merchant will be transferred to Sub-Merchant’s designated bank account within three days of the date of the transaction.
• Errors and Disputes. Sub-Merchant shall not seek recourse against Customers for payments actually made to Provider but not received by Sub-Merchant. Sub-Merchant must carefully review each statement of payments made to Sub-Merchant and must report any errors therein or disputes therewith to Pay Theory within 30 days of receipt thereof. Any error or dispute that Sub-Merchant fails to report to Pay Theory within such 30-day period shall be waived, and Sub-Merchant will be prohibited from making any claim with respect to errors thereafter.
• Other Documents. Sub-Merchant agrees to complete and enter into all applicable documents required by Pay Theory in connection with the Cash Services.
• Termination of Cash Services. Sub-Merchant may opt out of the Cash Services at any time upon written request by Sub-Merchant without directly or indirectly affecting Sub-Merchant’s ability to use other components of the Services.

7. Fees

• Fees for Use of Services. In consideration for use of the Services, Sub-Merchant shall pay to Pay Theory the fees set forth on Exhibit A hereto. Pay Theory may change or add fees and/or charges upon at least sixty (60) days’ prior written notice to Sub-Merchant. In the event Pay Theory changes or add fees or charges pursuant to the immediately preceding sentence ("Fee Change"), Sub-Merchant may, subject to the following provisions, terminate the Agreement upon 60 days advance written notice to Pay Theory provided Pay Theory receives such written notice of Sub-Merchant’s intention to so terminate within 90 days of the date the Fee Change becomes effective. Upon Pay Theory’s receipt of written notice pursuant to the immediately preceding sentence, it shall have 30 days to rescind or waive the Fee Change, and, in the event it elects to rescind or waive the Fee Change, Sub-Merchant shall not have the right to terminate this Agreement as a result of the Fee Change and this Agreement shall remain in full force and effect notwithstanding Sub-Merchant’s written notice to terminate. Sub-Merchant acknowledges and agrees that this Section shall not be intended or construed to permit it to terminate the Agreement as a result of a change or increase in fees from third parties and/or in pass through fees as referenced in this Agreement or another agreement between the Parties.
• Fees for Use of Equipment. Sub-Merchant may purchase or lease equipment from Pay Theory to facilitate use of the Services. The cost of any such equipment will be amortized over the Initial Term and will be payable together with the monthly fees paid to Pay Theory by Sub-Merchant for use of the Services. If this Agreement terminates while equipment is being amortized, the full amount of such equipment is due and payable on termination.
• Errors and Disputes. Sub-Merchant must carefully review each payment made hereunder and must report any errors therein or disputes therewith to Pay Theory within 30 days of receipt of any invoice for such payment. Any error or dispute that Sub-Merchant fails to report to Pay Theory within such 30-day period shall be waived, and Sub-Merchant will be prohibited from making any claim with respect to errors in payment or overpayment of such fees thereafter.

8. Compliance

• Compliance Obligations. Sub-Merchant shall and shall cause the principals, officers, directors, representatives, employees, agents, and contractors (collectively, “Representatives”) of Sub-Merchant, as well as the Customers using the Services, to comply with (a) all laws, policies, guidelines, regulations, ordinances, rules, and orders of any governmental authority or regulatory body applicable to Sub-Merchant or its business; (b) current policies, procedures, and guidelines of Pay Theory and Third Party Providers regarding the Services; and (c) all rules promulgated from time to time by any of VISA, Mastercard, Discover, American Express or any other card network (each, an “Association”) including the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program, third-party agent registration requirements, the Payment Card Industry Data Security Standards (“PCI DSS”), and the Payment Application Data Security Standard (PA-DSS) and, if ACH Services are selected or provided, the National Automated Clearing House Association rules (“NACHA”) (collectively, the “Rules”). If any terms of this Agreement conflict with the Rules, the Rules will govern.
• Payment Cards. Sub-Merchant represents and warrants that it does not have access to Customer payment card information and will not retain any such information if provided to Sub-Merchant by Customers. If Sub-Merchant believes that any payment card information has been compromised, Sub-Merchant must notify Pay Theory promptly and assist in providing notification to the proper parties. Additionally, all costs of mitigation or notification associated with the compromise of payment card information will be borne by Customer. Pay Theory may reverse payment card transactions deemed to violate this Agreement, and Sub-Merchant will reimburse Pay Theory for any costs or fees associated with such reversal.
• PCI DSS. Sub-Merchant may be required to be PCI DSS compliant to use the Services. If so required, Sub-Merchant must provide Pay Theory with annual certification of Sub-Merchant’s compliance with the then-current PCI DSS standards, which may be provided via an online PCI DSS reporting tool, a paper or PDF version of the appropriate Self-Assessment Questionnaire, or through another mutually agreed upon method. Further, Sub-Merchant will assist Pay Theory in maintaining its PCI DSS compliance, to the extent such PCI DSS compliance relates to Sub-Merchant.
• Security. Sub-Merchant shall implement reasonable administrative, technical, and physical security measures to protect any data obtained by Pay Theory or any Third Party Providers from unauthorized access, disclosure, or loss. In the event of a data breach or suspected unauthorized access involving Customer data or credentials, Sub-Merchant shall notify Pay Theory in writing within 72 hours and cooperate in any required notifications, investigations, or remedial efforts.
• PROHIBITED ACTIVITIES. Sub-Merchant shall not (i) use the Services for any high-risk activity or product, including but not limited to adult content, gambling, or firearms (unless expressly agreed otherwise in writing by pay Theory), (ii) use the Services in any manner that violates law, or any Pay Theory or Third Party Providers’ policies, (iii) attempt to gain unauthorized access to systems or data, or (iv) engage in activity that may interfere with or degrade the performance or integrity of any system used in connection with the Services. Sub-Merchant shall only use data obtained by Pay Theory or any Third Party Providers in accordance with the Customer’s explicit consent and for the sole purpose of delivering the applicable services to that Customer. Sub-Merchant shall not sell, share, reuse, or disclose Third Party Provider-sourced data for any other purpose.
• AUDIT. Sub-Merchant agrees that Pay Theory and Third Party Providers shall have the right to audit Sub-Merchant’s compliance with this Agreement, including any applicable card network rules, security standards, or Pay Theory or Third Party Providers’ requirements. Audits may include on-site visits, review of records, and access to relevant systems and personnel upon reasonable notice. Sub-Merchant shall maintain records sufficient to demonstrate compliance with the requirements of this Agreement and any and all Third Party Provider policies applicable to Sub-Merchant. Upon request, Sub-Merchant shall cooperate with any audit or information request by Pay Theory, Third Party Provider, financial institution, or governmental authority. In addition, Sub-Merchant agrees to provide transaction records, ACH authorizations, or customer disclosures upon request.

9. Conditions of License

• Intellectual Property. The provision of access to the Services by Pay Theory does not convey any other license, expressly or by implication, estoppel or otherwise, under any intellectual property rights owned or controlled by Pay Theory, all of which is and shall remain the exclusive property of Pay Theory or its Third Party Providers, as applicable. The Parties agree that Pay Theory retains all right, title, and interest in and to the Services, and all worldwide patents and patent rights, copyrights, trademarks, and trademark rights (including all associated goodwill), trade secrets, and trade secret right, and other intellectual property rights or proprietary rights, comprising, incorporated into, or associated with the Services, or other Pay Theory technology in connection with this Agreement or the Services, whether created, designed, developed, licensed from Third Party Providers, or reduced to practice by or for Pay Theory before, during, or after the Term (collectively, the “Pay Theory IP”).
• Additional Restrictions on License. Sub-Merchant shall not, and shall not permit any of its affiliates to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Pay Theory IP (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to law); (ii) remove any proprietary notices related to the Pay Theory IP; (iii) circumvent any technological measure that controls access to the Pay Theory IP; (iv) modify, translate, or create derivative works based on the Pay Theory IP, except with the prior written approval of Pay Theory; (v) use the Services for any purpose other than for the benefit of Sub-Merchant pursuant to this Agreement; or use the Services other than in accordance with this Agreement and in compliance with the Rules and all applicable laws. Sub-Merchant shall be responsible for the exercise and performance of its rights, duties, and obligations taken by its employees, agents, and contractors to the same extent as if such actions had been taken by Sub-Merchant directly.
• Use of Marks. Sub-Merchant shall not use, copy, display, modify, or distribute any trademarks, logos, or proprietary materials of Pay Theory or any Third Party Provider.

10. Term and Termination

• Term. The initial term of this Agreement shall be two years commencing on the Effective Date (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive one-year terms (any such renewal, a “Renewal Term” and with the Initial Term, the “Term”) unless either Pay Theory or Sub-Merchant provides at least 90 days’ written notice of non-renewal prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable, or unless earlier terminated as provided herein.
• Event of Default. The occurrence of any one or more of the following will constitute an “Event of Default” hereunder:

• Any act or omission by Sub-Merchant that may damage the reputation, business, or goodwill of Pay Theory or any Third Party Provider or any fraud or intentional misconduct by Sub-Merchant.
• Any representation or warranty made by Sub-Merchant or any of its employees, principals, officers, or directors is or becomes false or misleading.
• Any violation by Sub-Merchant of this Agreement.
• Any failure by Sub-Merchant to perform any other obligation herein if such failure is not cured within 30 days of receipt of written notice thereof from Pay Theory.
• The institution by or against Sub-Merchant of insolvency, receivership, or bankruptcy proceedings, or Sub-Merchant’s making an assignment for the benefit of creditors.

• Termination.
  • Automatic Termination. Notwithstanding anything in this Agreement to the contrary, this Agreement will automatically terminate if: (A) any Association prohibits Pay Theory from providing, or prohibits any Third Party Provider from allowing Pay Theory to provide, the Services; (B) any Third Party Provider necessary for the provision of Services ceases to be registered with any applicable Association; or (C) any governmental authority having jurisdiction over Pay Theory or a Third Party Provider directs that this Agreement be terminated.
  • Termination for Cause. Pay Theory may terminate this Agreement immediately and without advance notice upon the occurrence of an Event of Default hereunder. Sub-Merchant may terminate this Agreement if Pay Theory fails to observe any material obligation specified in this Agreement, and such failure is not cured within 30 days of receipt of written notice thereof from Sub-Merchant.
  • Termination by Pay Theory. Pay Theory may, in its sole discretion, immediately suspend or terminate (i) Sub-Merchant’s access to any Services or functionality provided in whole or in part by any Third Party Provider if required to do so by the applicable Third Party Provider, or if Pay Theory deems such suspension necessary to comply with the requirements of any Third Party Provider; (ii) specific transaction types, transaction volumes, or use of particular payment instruments, if required by a Third Party Provider or if Pay Theory determines, in its discretion, that Sub-Merchant’s actions or transaction activity present actual or potential security, compliance, operational, financial, or reputational risk to Pay Theory, any Third Party Provider, or any financial institution, (iii) this Agreement, in whole or in part, if required to do so by any Third Party Provider, including any upstream provider, sponsor bank, or financial institution or if Pay Theory reasonably believes Sub-Merchant’s actions or inactions (a) violate applicable law, regulations, card network rules, or the terms of this Agreement, (b) constitute fraud, misrepresentation, or other unlawful or improper conduct, (c) threaten the integrity, security, or availability of the Services, or (d) otherwise create undue risk to Pay Theory, any Third Party Provider, or the payment system; or (iv) this Agreement, in whole or in part, or Sub-Merchant’s access to any Services, if Pay Theory determines, in its sole discretion, that continuation of the Agreement or Services is commercially impractical, financially unsustainable, or otherwise not in Pay Theory’s business interests.
• Injunctive Relief. If Sub-Merchant violates Sections 3, 7 or 8 of this Agreement, Pay Theory will suffer irreparable harm and the total amount of monetary damages for any injury to Pay Theory will be impossible to calculate and therefore an inadequate remedy. Accordingly, Sub-Merchant agrees and understands that upon its actual or threatened breach of any of the provisions contained in Sections 5 or 8 of this Agreement, Pay Theory shall be entitled to the immediate grant of injunctive relief without the requirement of posting a bond enjoining such actual or threatened violation by Sub-Merchant, its Representatives, affiliates, or any person acting in concert with Sub-Merchant; and that Pay Theory may exercise any other rights and seek any other remedies to which Pay Theory may be entitled to at law, in equity and under this Agreement for any violation of such obligations.
• Termination of License. Upon the expiration of the Term or termination of this Agreement for any reason: (i) all rights, licenses, sublicenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate; and (ii) Sub-Merchant shall immediately cease all use of the Pay Theory IP, and return, deactivate, destroy, permanently erase, or otherwise remove the same from Sub-Merchant’s systems and equipment, and provide written confirmation of the same to Pay Theory.

11. Representations and Warranties

• Each Party represents and warrants to the other that (i) it has full power and legal right to execute and deliver this Agreement and to perform its obligations herein; (ii) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; (iii) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms, and (iv) it has all right, title or interest, or valid license to use, its respective intellectual property, and that its grant of rights associated therewith do not violate any proprietary rights of any third party.
• Sub-Merchant represents and warrants to Pay Theory that: (i) Sub-Merchant is an entity validly existing and in good standing under the laws its state of formation and in any state where it conducts operations; (ii) Sub-Merchant is in compliance with the terms of this Agreement, the Rules, and applicable law; and (iii) all representations and statements made by Sub-Merchant in this Agreement, or in any other related document by Sub-Merchant, are true, accurate, and complete in all material respects.

12. Confidentiality Obligations

• Confidentiality Obligations. Each Party (as “Disclosing Party”) acknowledges that it may directly or indirectly, whether orally or in writing, disclose Confidential Information (as defined below) to the other Party (as “Receiving Party”) in the course of negotiation of and performance of this Agreement. Receiving Party will not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written consent. Receiving Party will protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own Confidential Information of like kind (but in no event using less than reasonable care). Each Party represents and warrants that it will collect, maintain and handle all personal data in compliance with all applicable data privacy and protection laws. Receiving Party will promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
• Confidential Information. For the purposes of this Agreement, “Confidential Information” means all non-public, proprietary, secret or confidential information or data, whether designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, relating to a Party (and to Third Party Providers in the case of Pay Theory) and any of its or their, as applicable, respective Representatives, affiliates, operations, products, services, clients, customers, potential customers, including without limitation intellectual property, trade secrets, pricing, business and marketing plans, technology and technical information, product designs, and business processes, customer lists, financial or other data in any format, and the terms and conditions of this Agreement. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
• Permitted Disclosure. Each Party may confidentially disclose the terms and conditions of this Agreement to its accountants or legal counsel or to any actual or potential bona fide investors, acquirers or lenders. If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it will provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
• Return of Confidential Information. Upon any termination of this Agreement, Receiving Party will, upon request, return to Disclosing Party or destroy (at Disclosing Party’s election) all materials containing such Confidential Information. Notwithstanding anything in this Agreement to the contrary, nothing herein shall prohibit or limit Pay Theory’s any Third Party Provider’s right to use or share any deidentified, aggregated data during or after the Term.
• Use of Data. Sub-Merchant gives Pay Theory and Third Party Providers the right to use transaction data and related information to (i) provide the Services, (ii) comply with applicable law or legal process, and (iii) generate and use aggregated and de-identified data for purposes such as data analytics, benchmarking, research, and improving or enhancing the Services and related offerings.

13. Indemnification

• Indemnification by Pay Theory. Subject to the limitations in this Agreement, Pay Theory shall indemnify, defend, and hold harmless Sub-Merchant and its Representatives from any and all third-party claims, damages, liabilities, losses, or expenses (including attorneys’ fees and costs of defense) (collectively, “Claims”) arising out of or resulting from (i) Pay Theory’s material breach of this Agreement, or (ii) Pay Theory’s gross negligence, willful misconduct or fraud.
• Indemnification by Sub-Merchant. Sub-Merchant shall indemnify, defend, and hold harmless Pay Theory, Third Party Providers and their respective affiliates and Representatives from and against all Claims, including but not limited to fees or fines imposed by any Association arising out of or resulting from Sub-Merchant’s (i) breach of this Agreement, (ii) violation of law or applicable rules, (iii) negligence, fraud, or willful misconduct, (iii) acts or omissions of Sub-Merchant, or (iv) use of the Services.
• Procedure. The Party providing indemnification under this Section 12 shall pay the defense of a Claim as well as all costs and damages finally awarded by a court of competent jurisdiction as a result of such Claim; provided, however, the Party seeking indemnification must (i) promptly give written notice of the Claim to the other Party; (ii) give the other Party sole control of the defense and settlement of the Claim (provided that the other Party may not settle any Claim unless it unconditionally releases the Party seeking indemnification of all liability); and (iii) provide to the other Party, at the Party seeking indemnification’s cost, all reasonable assistance.

14. Limitation of Liability

• THE SERVICES ARE PROVIDED ON AN “AS-IS,” “AS AVAILABLE” BASIS. PAY THEORY SHALL HAVE NO LIABILITY TO END USER WITH RESPECT TO ANY FAILURE OR INTERRUPTION IN THE SERVICES ARISING FROM THE ACTS OR OMISSIONS OF ANY VENDOR. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAY THEORY AND EACH VENDOR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE SERVICES WILL BE INTERRUPTION OR ERROR FREE.
• EXCEPT AS PROVIDED BELOW, (I) IN NO EVENT WILL THE LIABILITY OF PAY THEORY FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE FEES PAID BY END USER TO PAY THEORY DURING THE THREE-MONTH PERIOD DIRECTLY PRIOR TO THE CLAIM, (II) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS 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, AND (III) IN NO EVENT WILL SUB-MERCHANT HAVE ANY CLAIM FOR DAMAGES DIRECTLY AGAINST ANY THIRD PARTY PROVIDER, WHETHER DIRECT OR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL ARISING FROM THIS SUB-MERCHANT AGREEMENT OR THE PROVISION OF SERVICES BY THE THIRD PARTY PROVIDER.
• Notwithstanding the foregoing, no limitation on or exclusion of liability applies to: (i) damages arising from a breach of Sections 3, 7, or 8 (ii) Sub-Merchant’s misappropriation or infringement of Pay Theory’s rights in the Pay Theory IP, or (iii) any liability that, by law, cannot be excluded by agreement of the Parties.

15. Reserve; Security Interest

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

16. General Provisions

• Notice. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand; (ii) when received by the addressee as reflected on the records of a nationally recognized overnight courier; (iii) on the date sent by e-mail if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed with postage prepaid by certified mail, return receipt requested. Such communications must be sent to Pay Theory at the address set forth in the preamble to this Agreement and to Sub-Merchant at the address set forth on the signature page hereto (or at such other address for a Party as specified in a notice given in accordance with this Section 14), provided that a notice may be given on behalf of a Party by its attorney.
• Interpretation. The headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation hereof. For all purposes of this Agreement, unless otherwise specified herein, (i) “or” shall mean “and/or”; (ii) words in the singular shall be construed to include the plural and vice versa; (iii) the words “hereof” and “herein” and words of similar import shall be construed to refer to this Agreement as a whole; and (iv) the words “including” and “includes” and words of similar import shall be deemed to be followed by the words “without limitation” in all instances.
• Independent Contractor. The relationship of Pay Theory and Sub-Merchant established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to: (i) give either Party the power to direct and control the day-to-day activities of the other; (ii) constitute the Parties as partners, co-owners or otherwise as participants in a joint or common undertaking; or (iii) allow Sub-Merchant to create or assume any obligation on behalf of Pay Theory for any purpose whatsoever.
• Entire Agreement; Amendment. Both Parties agree that this Agreement, along with any addenda, exhibits or schedules attached hereto or referenced herein, is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. Notwithstanding the foregoing, Pay Theory may (i) amend Exhibit A by e-mail to Sub-Merchant and (ii) amend this Agreement to the extent required by any Third Party Provider on 20 days’ written notice.
• Severability; Waiver. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. No waiver by any Party of any of the provisions of this Agreement shall be effective unless set forth in writing and signed by such Party. The failure by either Party to enforce against the other Party any term or provision of this Agreement will not be deemed to be a waiver of such Party’s right to enforce against the other Party the same or any other such term or provision in the future.
• Force Majeure. Neither Party will be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to an event outside of the reasonable control of a Party, including a natural disaster, action or decree of a governmental body or communications line failure.
• Third-Party Beneficiaries. Sub-Merchant agrees that certain Third Party Providers shall be deemed third-party beneficiaries of this Agreement solely with respect to any obligations related solely to the use of such Third Party Provider’s services herein, and shall have the right to enforce terms herein that relate to their services directly against Sub-Merchant. Otherwise, the Parties do not confer any rights or remedies upon any person other than the Parties, Third Party Providers, and their respective permitted successors and permitted assigns.
• Successors and Assigns. Sub-Merchant may not assign this Agreement or any of its rights hereunder, whether by operation of law, change of control, or otherwise, without the prior written consent of Pay Theory, which consent shall not be unreasonably delayed or withheld. Pay Theory may assign its rights and obligations hereunder to a third party provided Pay Theory shall require the assignee to assume Pay Theory’s obligations and liabilities hereunder. This Agreement shall be binding upon each Party’s permitted successors and assigns.
• Survival. Sections 3, 8, 10 through 13 shall survive termination of this Agreement.
• Governing Law, Choice of Law and Forum. This Agreement will be governed by the internal laws of the State of Ohio, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply. The federal and state courts located in Hamilton County, Ohio, will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.
• WAIVER OF JURY TRIAL. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY, FROM WHATEVER SOURCE ARISING, IN CONNECTION WITH ANY LITIGATION OR PROCEEDING ARISING OUT OF RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
• Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.
• Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, and all of such counterparts will constitute one Agreement. To facilitate execution of this Agreement, the Parties may execute and exchange counterpart signature pages of this Agreement by electronic signature, DocuSign (or a similar application), facsimile or e-mail.

Signatures on Following Page

IN WITNESS WHEREOF, the Parties have caused this Sub-Merchant Agreement to be duly executed as of the Effective Date.

Further, by signing below, Sub-Merchant expressly acknowledges that: (i) the individual signing this Agreement has the proper legal authority to bind the Sub-Merchant; (ii) the Sub-Merchant’s application for payment services may be rejected in underwriting but, once accepted, will constitute a legally binding Agreement with Pay Theory; (iii) all information provided by Sub-Merchant is true and accurate; (iv) Pay Theory’s provision of Services under this Agreement shall be expressly conditioned on Sub-Merchant’s payment of all fees and other charges, and Sub-Merchant’s continued compliance with the Agreement; and (vi) the authority granted herein shall be in the nature of a Power of Attorney, which shall be deemed created, is irrevocable and coupled with an interest.

PAY THEORY, INC.

END USER LEGAL NAME

​By: By:

Name: Name:

Title: Title:

Date: Date:

Address:

Telephone:

Email:

EXHIBIT A: FEE SCHEDULE

Pay Theory charges fees to process Card, Automated Clearing House (ACH, electronic Check) and Cash transactions as well as to deliver appropriate payment management services consistent with the schedule below.

EXHIBIT B: THIRD PARTY TERMS

Discover

American Express

Plaid

DISCOVER CARD ACCEPTANCE ADDENDUM

Upon Sub-Merchant’s election to accept Discover Cards (and approval by Discover, Pay Theory and its Third Party Providers), the Parties expressly agree to the following:

• Discover Terms and Conditions.

• Sub-Merchant must comply with the terms of the Discover Operating Regulations, including the Technical Specifications and Dispute Rules Manual and Operating Guide, as amended from time to time (collectively, “Discover Rules”), each of which are incorporated herein by reference.
• Pay Theory or its Third Party Providers are responsible for providing settlement funds for Discover Card transactions directly to Sub-Merchant’s designated bank account (“Settlement Account”).
• Sub-Merchant agrees to provide transaction data and other information as requested to Discover and any entities required by Discover, including information required for the Consortium Merchant Negative File (commonly referred to as MATCH).
• Sub-Merchant may not use, store or disclose transaction data or Customer information except as permitted under the Discover Rules.
• Sub-Merchant agrees to accept Discover Card checks consistent with card checks of other card types and similar to Sub-Merchant’s policies concerning personal checks.
• The Discover Rules may be obtained by contacting Pay Theory customer service. Sub-Merchant will not receive separate terms and conditions from Discover.

• Discover Program Marks. Sub-Merchant may not use any Discover Program Marks, as defined below, except as expressly authorized in writing by Pay Theory. The “Program Marks” mean the brands, emblems, trademarks, and logos that identify Discover Cards, including, without limitation, Diners Club International Cards. Additionally, Sub-Merchant may only use Program Marks provided to Sub-Merchant by Pay Theory to display decals, indoor and outdoor signage, websites advertising materials, marketing materials, and other forms depicting the Program Marks as expressly authorized by Pay Theory. Sub-Merchant shall not use the Program Marks a way that could lead Customers to believe that the products or services offered by Sub-Merchant are sponsored or guaranteed by the owners of the Program Marks. Sub-Merchant recognizes that it has no ownership rights in the Program Marks. Sub-Merchant shall not assign to any third party any of the rights to use the Program Marks.
• Authorization. With respect to Discover Card transactions, Pay Theory is authorized to initiate or transmit automatic debit and/or credit entries and/or check entries to the Settlement Account, including through the ACH Services, for all services contemplated under this addendum. Sub-Merchant agrees that Pay Theory may charge the Settlement Account for any chargeback, credit voucher, reimbursement, or other fee to which Pay Theory or its Third Party Providers may be entitled.
• Settlement. Sub-Merchant acknowledges that the Discover Rules make provisional any credit given for an entry until final settlement. Pay Theory or its Third Party Providers will provide provisional credit to Sub-Merchant for each valid Discover Card transaction submitted by Sub-Merchant by crediting the Settlement Account, provided Pay Theory or such Third Party Provider has received settlement for the valid transaction through the interchange procedures specified by Discover. However, Pay Theory may suspend or discontinue any provisional credit in its sole and absolute discretion. If final settlement does not occur or if a reversal occurs, Sub-Merchant agrees that it shall be responsible for any related refunds or associated costs, and Pay Theory and the Third Party Providers shall be reimbursed by Sub-Merchant to the extent they are charged or pay such amounts. Pay Theory and the Third Party Providers may deduct such amounts from the Settlement Account and from any payout to Sub-Merchant.
• Security. As a condition to Pay Theory and its Third Party Providers providing Discover Card processing services under this addendum, Sub-Merchant may be required to provide additional collateral security, beyond the amounts provided for under the Agreement, for Sub-Merchant’s obligations under this addendum. The additional collateral security shall be of a kind, and in amounts, satisfactory to Pay Theory and may include delaying payments to Sub-Merchant on Discover Card transaction settlements.
• Fees. Sub-Merchant shall pay the fees set forth on Exhibit A to the Agreement, as well as any amounts charged to Pay Theory or the Third Party Providers by any other Third Party Provider in relation to Discover Card transactions. All fees and other amounts due pursuant to this addendum shall be subject to the terms and conditions applicable to fees generally in the Agreement.
• Termination. If the Agreement is terminated for any reason, this addendum will immediately terminate. Any of Pay Theory or Discover may terminate this addendum at any time without cause upon 30 days’ advance written notice and may terminate this addendum for cause in either’s sole discretion, effectively immediately. Pay Theory must terminate this addendum if directed by a Third Party Provider or Association.
• Miscellaneous.

• Sub-Merchant agrees to complete and enter into all applicable documents required by Pay Theory in connection with Sub-Merchant’s acceptance of Discover Cards.
• To the extent that this addendum conflicts with the terms of the Agreement, the terms set forth in this addendum shall control with respect to Sub-Merchant’s acceptance of Discover Cards to the extent of such conflict. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the Agreement.

AMERICAN EXPRESS CARD ACCEPTANCE ADDENDUM

Upon Sub-Merchant’s election to accept Amex Cards (and approval by American Express, Pay Theory and its Third Party Providers), the Parties expressly agree to the following:

• American Express General Terms and Conditions.

• Sub-Merchant must comply with the terms of the American Express Operating Guide, as amended from time to time, which are incorporated herein by reference. Sub-Merchant will not receive separate terms and conditions from American Express.
• Sub-Merchant authorizes Pay Theory and its Third Party Providers to submit Amex Card transactions to, and receive settlement from, American Express on behalf of Sub-Merchant.
• Sub-Merchant may opt out of Amex Card acceptance at any time upon written request by Sub-Merchant, at which point this addendum will terminate, without directly or indirectly affecting its rights to accept other Association payment cards.
• Sub-Merchant is prohibited from billing or collecting from any Customer for any purchase or payment on an Amex Card unless a chargeback has been exercised, Sub-Merchant has fully paid for such Amex Card transaction, and Sub-Merchant otherwise has the right to do so.
• Sub-Merchant must remove American Express program marks from Sub-Merchant’s website and wherever else they are displayed upon termination of the Agreement or Amex Card acceptance under this addendum

• Transaction and Sub-Merchant Information. Sub-Merchant consents to American Express’s use of Amex Card transaction data and other information related to Sub-Merchant to perform its responsibilities in connection with processing an Amex Card transaction, promote the American Express network, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communication purposes within the parameters of its agreement with one or more of Pay Theory or its Third Party Providers, and important transactional or relationship communications from American Express. Sub-Merchant acknowledges and agrees that American Express may monitor Sub-Merchant in connection with Amex Card marketing and administrative purposes.
• High Charge Volume Conversion. Sub-Merchant acknowledges and agrees that it may be converted from Amex Card acceptance pursuant to this addendum to a direct Amex Card acceptance relationship with American Express if and when it becomes a “High CV Merchant.” A “High CV Merchant” means a merchant with either (a) greater than $1,000,000 in Amex Card transaction volume (including all volume from all locations) in a rolling 12-month period or (b) greater than $100,000 in Amex Card transaction volume (including all volume from all locations) in any three consecutive months. Upon any such conversion, Sub-Merchant acknowledges and agrees that (i) Sub-Merchant will be bound by American Express’s then-current Card Acceptance Agreement, and (ii) American Express will set pricing and other fees payable by Sub-Merchant for Amex Card acceptance.
• Transaction Encumbrances. Sub-Merchant acknowledges and agrees that its shall not assign to any third party any payments due to it under the Agreement arising from Amex Card transactions, and all indebtedness arising from Amex Card Transactions will be for bona fide sales of goods and services (or both) at its place of business and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Sub-Merchant may sell and assign future Amex Card transaction receivables to Pay Theory or its Third Party Providers or their affiliated entities, without consent of American Express.
• Refund Policies. Except as may otherwise be required or permitted by the American Express Merchant Operating Guide or applicable law, Sub-Merchant agrees to have a refund policy for purchases on an Amex Card that is at least as favorable as its refund policy for purchases on any other Association payment cards, and to disclose the refund policy to Customers at the time of purchase. Moreover, Sub-Merchant agrees that its refund policy for purchases on an Amex Card is compliant with applicable law.
• Fees. Sub-Merchant shall pay the fees set forth on Exhibit A to the Agreement, as well as any amounts charged to Pay Theory or the Third Party Providers by any other Third Party Provider in relation to Amex Card transactions. All fees and other amounts due pursuant to this addendum shall be subject to the terms and conditions applicable to fees generally in the Agreement.
• Third-Party Beneficiary. American Express shall be a third-party beneficiary of the Agreement for purposes of Amex Card acceptance. As a third-party beneficiary, American Express shall have the right to enforce directly against Sub-Merchant the terms of the Agreement and this addendum as related to Amex Card acceptance. Sub-Merchant acknowledges and agrees that American Express shall have no responsibility or liability with regard to Pay Theory’s or any Third Party Provider’s obligations to Sub-Merchant under the Agreement and this addendum.
• Miscellaneous.

• Sub-Merchant agrees to complete and enter into all applicable documents required by Pay Theory in connection with Sub-Merchant’s acceptance of Amex Cards.
• To the extent that this addendum conflicts with the terms of the Agreement, the terms set forth in this addendum shall control with respect to Sub-Merchant’s acceptance of Amex Cards to the extent of such conflict. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the Agreement.

PLAID TERMS

For purposes of these Plaid Terms, “End Client” shall refer to Sub-Merchant, and “Partner” shall refer to Pay Theory.

• Restrictions. Unless Plaid specifically agrees otherwise in writing, End Client will not, and will not enable or assist any third-party to: (i) attempt to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Plaid services described at https://www.plaid.com (“Plaid Services”); (ii) modify, translate, or create derivative works based on the Plaid Services; (iii) make the Plaid Services or information and data of End Client’s end users (“End Users”) provided to End Client via the Plaid Services (such information and data, the “Plaid Provided Data”) or any derivative work thereof available to, or use the Plaid Services or Plaid-Provided Data (or any derivative work thereof) for the benefit of, anyone other than End Client or End Users; (iv) sell, resell, license, sublicense, distribute, rent, or lease any Plaid Services or Plaid-Provided Data (or any derivative work thereof) to any third-party, or include any Plaid Services or Plaid-Provided Data (or any derivative work thereof) in a service bureau, time-sharing, or equivalent offering; (v) publicly disseminate information from any source regarding the performance of the Plaid Services or Plaid-Provided Data; or (vi) attempt to create a substitute or similar service through use of, or access to, the Plaid Services or Plaid Provided Data. End Client will use the Plaid Services and Plaid-Provided Data only in compliance with: (a) the End Client application, use case, and other restrictions agreed between Plaid and Partner; (b) the Plaid developer policies (available at https://www.plaid.com/legal); (c) Plaid’s applicable technical user documentation (available at https://www.plaid.com/docs); and (d) any agreements between End Client and End Users (for clarity, including any privacy policy or statement). Notwithstanding anything to the contrary, as between Plaid and End Client, End Client accepts and assumes all responsibility for complying with all applicable laws and regulations in connection with End Client’s activities involving any Plaid Services, Plaid Provided Data, or End User data. End Client acknowledges and agrees that: (I) Plaid is neither a “consumer reporting agency” nor a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”); and (II) the Plaid-Provided Data is not a “consumer report” under the FCRA. End Client represents and warrants that it will not, and will not permit or enable any third party to, use the Plaid Services (including Plaid-Provided Data) as a or as part of a “consumer report” as that term is defined in the FCRA, or otherwise use the Plaid Services (including Plaid-Provided Data) such that the Plaid Services (including Plaid-Provided Data) would be deemed “consumer reports” under the FCRA. Notwithstanding anything to the contrary, End Client will be bound by and will only use the Plaid Services and Plaid-Provided Data in compliance with, the terms and conditions set forth in this agreement.
• Secondary Investors. Subject to this Section 2 (Secondary Investors), End Client may request that Plaid or Partner disclose Plaid-Provided Data or a Partner product or service including or incorporating Plaid-Provided Data (collectively, the “Shared Data”) to End Client’s Secondary Investors. “Secondary Investor” means a third-party investor or purchaser of a financial product originated by End Client and provided to an End User (e.g., a loan), with which investor or purchaser Plaid maintains a separate technical integration.
  • End Client represents and warrants to Plaid that, before disclosure of Shared Data to any Secondary Investor, End Client will provide and obtain all required (including under applicable law) notices and consents from the applicable End User with respect to disclosure of Shared Data to such Secondary Investor by Plaid or Partner.
  • Notwithstanding anything to the contrary: (a) as between Plaid and End Client, solely End Client is responsible for its relationships with Secondary Investors and with Partner, including any related billing matters, technical support, or disputes; (b) End Client will enter into legally binding written agreements with each Secondary Investor that are consistent with this Section 2 (Secondary Investors) and all applicable terms and conditions of this Exhibit A (End Client Flow Down Terms), including Section 1 (Restrictions); and (c) as between Plaid and End Client, End Client will remain responsible for the Secondary Investors’ compliance with all of the terms and conditions of this Exhibit A (End Client Flow Down Terms) (including terms relating to use of Plaid-Provided Data or Shared Data).
  • As between Plaid and End Client, End Client will be fully liable for: (a) any breach by End Client of this Section 2 (Secondary Investors); (b) any acts or omissions of Secondary Investors; and (c) any dispute arising among End Client, Partner, Secondary Investors, and/or End Users relating to the disclosure or use of Shared Data as contemplated in this Section 2 (Secondary Investors).
• Privacy and Authorizations. Before any End User engages with Partner products or services which include, are derived from, or incorporate the Plaid Services, End Client warrants and will ensure that it provides all notices and obtains all consents required under applicable law to enable Plaid to process End User data in accordance with Plaid’s privacy policy (currently available at https://www.plaid.com/privacy). End Client will not: (i) make representations or other statements with respect to End User data that are contrary to or otherwise inconsistent with Plaid’s privacy policy; or (ii) interfere with any independent efforts by Plaid to provide End User notice or obtain End User consent.
• DISCLAIMER; ENFORCEMENT. THE PLAID SERVICES, PLAID-PROVIDED DATA, AND ANY OTHER INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND MATERIALS PROVIDED BY PLAID IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PLAID NOR ITS AFFILIATES, SUPPLIERS, LICENSORS, OR DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY WARRANTY THAT THE SERVICES ARE FREE FROM DEFECTS. WITHOUT LIMITING THE FOREGOING IN THIS SECTION 4 (DISCLAIMER; ENFORCEMENT), NEITHER PLAID NOR ITS AFFILIATES, SUPPLIERS, LICENSORS, OR DISTRIBUTORS MAKE ANY REPRESENTATION OR WARRANTY AS TO THE PLAID-PROVIDED DATA THAT MAY BE OBTAINED FROM USE OF THE PLAID SERVICES OR THAT ANY PLAID SERVICES WILL BE UNINTERRUPTED, OR THAT ANY DATA PROVIDED BY OR THROUGH ANY PLAID SERVICES WILL BE TIMELY, ACCURATE, OR COMPLETE. PLAID WILL BE AN INTENDED THIRD-PARTY BENEFICIARY OF THE AGREEMENT BETWEEN PARTNER AND END CLIENT AND MAY DIRECTLY ENFORCE SUCH AGREEMENT AGAINST END CLIENT, WITHOUT PARTNER’S CONSENT OR PARTICIPATION, BUT SOLELY RELATING TO THE PLAID-PROVIDED DATA (INCLUDING FI DATA) AND PLAID SERVICES THAT ARE PROVIDED BY PLAID TO PARTNER OR END CLIENT.
• FI Data. Through the Partner Services or Plaid Services, End Client may have access to information about or of End Users provided to Plaid by a bank, financial institution, or other data source (each, as designated by Plaid, “FI”, and such information, the “FI Data”).
• End Client Obligations.
  • End User Consents. End Client will provide all notices to, and obtain all express consents from, each End User as required under applicable laws in connection with End Client’s use, storage, and other processing of any FI Data (such notices and consents, the “Express Consents”). Express Consents will: (A) be clear and conspicuous; (B)generally specify the categories of FI Data that End Client will receive and how End Client will use, store, and otherwise process FI Data; (C) be valid, enforceable, and expressly accepted by each End User; (D) identify any and all third parties or categories of third parties to whom End Client may provide FI Data for processing; (E) specify how End Users may exercise their right to revoke their Express Consent; and (F) include any other required disclosures under applicable laws. End Client will maintain records (which may include technical logs, screenshots, versions of Express Consents obtained) sufficient to demonstrate End Client’s compliance with this Section 5(i)(a) (End User Consents) and will promptly provide such records to Plaid upon request.
  • Scope of Access. End Client will only access FI Data for which it has obtained Express Consents from the End User for the use case reviewed and permitted by Plaid in writing and consented to by the applicable End User (such use case, the “Permitted Use Case”). For clarity, key factors Plaid will consider during its review of a potential Permitted Use Case include whether the use case is appropriate and useful to provide the End User with the End Client application that the End User has enrolled in, whether the End Client application provides a direct benefit to the End User, whether the use case directly supports the development of new or improved product features for the benefit of End Users, and the jurisdiction(s) in which the End Client operates and/or stores FI Data. If End Client possesses FI Data that exceeds the scope of the End User’s Express Consents, End Client will use industry-standard means to permanently and securely delete (“Delete”) such FI Data; provided that End Client may retain such FI Data to the extent required by applicable laws. If End Client becomes aware that any data it receives from Plaid does not relate to the End User that End Client originally requested FI Data for, End Client will promptly notify Plaid and will Delete such data.
  • Data Use. End Client will use, store and otherwise process FI Data solely in accordance with the End User’s Express Consents and applicable laws.
  • Data Disclosure. End Client will not disclose, transfer, syndicate or distribute FI Data to any third party (including its Permitted Service Providers) (“Data Sharing”) except in each case with the End User’s Express Consent and in accordance with applicable laws. Notwithstanding anything to the contrary, End Client will not sell FI Data.
  • Data Deletion. End Client will promptly Delete any FI Data upon request by the applicable End User; provided that End Client may retain copies of FI Data solely to the extent required by applicable laws.
  • No Attribution. End Client will not charge End Users any fees attributable to an FI for (a) access to its FI Data or (b) use of End User’s account with an FI in connection with the End Client application. In addition, End Client will not suggest or imply a partnership, sponsorship, or other relationship with an FI based on End Client’s receipt of FI Data under the Partner Client Agreement or this Section 5 (FI Data).
  • No Other Access. During the term of the Agreement, End Client will only access FI Data through the Plaid Services or another manner that uses the FI’s authorized APIs. End Client will not “screen scrape” data from FIs or collect an End User’s log-on credentials for FI accounts and will not otherwise knowingly obtain from a third-party FI Data that was originally sourced through screen scraping an FI. End Client will immediately Delete any such End User log-on credentials in its possession. End Client will maintain records to demonstrate compliance with this Section 5(i)(g) (No Other Access). For the avoidance of doubt, nothing in this Section 5(i)(g) (No Other Access) will prohibit End Client from engaging any third party to obtain services similar to the Plaid Services, provided that such third-party services enable End Client's access to FI Data solely via the FI’s authorized APIs.
  • Compliance with Laws. End Client will comply with all applicable privacy, security, and other laws pertaining to FI Data. End Client will not use, store, disclose, or otherwise process any FI Data for any purpose not permitted under applicable laws. For the avoidance of doubt, End Client acknowledges that Section 1033 of the Dodd-Frank Act may include obligations on End Client relating to processing, handling, and protecting FI Data. End Client will maintain a program designed to ensure compliance with applicable laws, including appropriately training End Client personnel.
  • Information Security Program. End Client will maintain a comprehensive written information security program approved by its senior management (“Infosec Program”). The Infosec Program will include administrative, technical and physical measures designed to: (a) ensure the security of FI Data, (b) protect against unauthorized access to or use of FI Data and anticipated threats and hazards to FI Data and (c) ensure the proper disposal of FI Data. The Infosec Program will be appropriate to End Client’s risk profile and activities, the nature of the End Client application, and the nature of the FI Data received by End Client. In any event, the Infosec Program will meet or exceed applicable control objectives captured in industry standards and best practices, such as AICPA Trust Service Criteria for Security, NIST 800-53, or ISO 27002, and will comply with applicable laws. End Client will use up-to-date antivirus software and anti-malware tools designed to prevent viruses, malware, and other malicious code in the End Client application or on End Client’s systems.
  • Security Breach Obligations. End Client will notify Plaid promptly (and in any event within twelve (12) hours) via an email to security@plaid.com, following End Client becoming aware of any Security Breach, providing a description of all known facts, the types of End Users affected, and any other information related to such Security Breach that Plaid may reasonably request. End Client will reasonably cooperate with Plaid in investigating and remediating Security Breaches. End Client will be responsible for the costs of investigating, mitigating, and remediating the Security Breach. “Security Breach” means any event that compromises the End Client application or End Client’s systems or that does or reasonably could compromise the security, integrity or confidentiality of FI Data or result in the unauthorized use, disclosure, or loss of FI Data.
  • FI Confidential Information. If Plaid discloses to End Client any confidential or proprietary materials of an FI pertaining to the provision of FI Data hereunder (such materials, “FI Confidential Information”), such materials will be subject to the same obligations that apply to Partner’s Confidential Information under the Partner-Client Agreement, which will in no event be less protective of such information than a reasonable standard of care. FI Confidential Information will also be subject to the same obligations as FI Data under this Section 5(i) (End Client Obligations). End Client will promptly Delete FI Confidential Information in its possession upon Plaid’s request and will provide a written certification regarding such Deletion.
  • Oversight and Cooperation. Toward assessing End Client’s material compliance with this Section 5 (FI Data), End Client will promptly provide all reasonably necessary information and cooperation requested by Plaid, an FI, or any entity with examination, supervision, or other legal or regulatory authority over Plaid or an FI. In the event that Plaid has a good faith reason to believe that End Client is not in material compliance with this Section 5 (FI Data), Plaid will notify End Client and, upon Plaid’s request, End Client will promptly provide sufficient documentation to demonstrate such material compliance. If the documentation provided by End Client in accordance with the immediately prior sentence is insufficient (in Plaid’s reasonable discretion) to demonstrate such material compliance, End Client will submit to a third-party audit by a firm selected by End Client from a list of audit firms reasonably approved by Plaid to verify such compliance. Plaid and FIs may also conduct technical or operational assessments of End Client, which will be subject to advance notice and will not occur more than once per year unless legally required and materially different in scope from a preceding audit.
  • Information Sharing. Where required by an FI or relevant to an End Client’s access or use of FI Data from that FI, Plaid may share with such FI certain information related to End Client’s compliance with this Section 5 (FI Data), including with respect to End Client’s Infosec Program. Plaid will use commercially reasonable efforts to require that such FI treat any such information in a confidential manner.
  • Insurance. End Client will maintain insurance coverage appropriate to End Client’s risk profile and activities, the nature of the End Client application, and the nature of the FI Data received by End Client; provided that such coverage will be no less than industry standard and will include cybersecurity liability insurance.
  • Access Frequency. The parties acknowledge that as of the effective date of the Partner-Client Agreement, no guidelines regarding End Client’s frequency of “batch” pulls of FI Data (such guidelines, the “Guidelines”) apply to Plaid end clients. Notwithstanding the foregoing in this paragraph: (1) End Client will comply with any Guidelines provided in writing by Plaid (including via Partner); and (2) Plaid and Partner may enforce such Guidelines to the extent necessary in accordance with Plaid’s standard practices, which may include throttling, suspension or termination of End Client’s access.
  • End Client Marks License. End Client hereby grants to Plaid and each FI (and each of their third-party service providers) the non-exclusive and non-transferable right and license to use End Client’s trademarks and service marks solely in connection with consent management activities, including use associated with End User facing consent management portals operated by Plaid or an FI.
• Suspension. Plaid may suspend End Client’s access to the Plaid Services or FI Data, in whole or in part, if Plaid determines or reasonably believes that: (a) End Client has breached this Section 5 (FI Data); (b) End Client’s use of the Plaid Services or FI Data will or has materially violated an agreement between Plaid and an applicable FI; (c) End Client’s use of the Plaid Services or FI Data will or does pose a risk of material harm, including material reputational harm, to End Users, an FI, or the Plaid Services. In addition, an FI may suspend End Client’s access to FI Data with respect to such FI. Plaid will use commercially reasonable efforts to: (1) notify Partner prior to any suspension described in this paragraph; (2) discuss with Partner in good faith any such suspension; and (3) resume End Client’s access to the Plaid Services and FI Data as promptly as is practicable after the basis for such suspension is cured to Plaid’s (and, as applicable, the relevant FI’s) reasonable satisfaction.
• Indemnity. End Client will indemnify, defend and hold harmless each FI, Plaid, and the affiliates of each of the foregoing from any claims, actions, suits, demands, losses, liabilities, damages (including taxes), costs, and expenses arising from or in connection with: (a) any Security Breach resulting in unauthorized disclosure of FI Data provided to End Client hereunder; or (b) End Client’s unauthorized or improper use of FI Data provided to End Client hereunder (including any unauthorized Data Sharing, transmission, access, display, storage, or loss). This Section 5(iii) (Indemnity) is not subject to any limitation of liabilities set forth in the Partner-Client Agreement. Each FI is a third-party beneficiary of this Section 5(iii) (Indemnity).
• Modifications. End Client acknowledges that continued access to FI Data provided by certain FIs may necessitate modifications to this Section 5 (FI Data) pertaining to all applicable Plaid end clients. End Client will accept such modifications to continue accessing or using the Plaid Services with respect to such FIs. Plaid will use commercially reasonable efforts to notify Partner of the modifications and the effective date of such modifications. If End Client objects to the modifications, its exclusive remedy is to cease any and all access and use of the Plaid Services as it relates to the applicable FI(s). Continued access to or use of such Plaid Services after the effective date of such modifications to this Section 5 (FI Data) will constitute End Client’s acceptance of such modifications.
• Miscellaneous. In the event of a conflict with any other agreement or provision (including other provisions within the Partner-Client Agreement), the terms and conditions of this Section 5 (FI Data) will govern and prevail. Capitalized terms used in this Section 5 (FI Data) and not otherwise defined will have the meanings ascribed to them in the Agreement. All provisions of this Section 5 (FI Data) will remain in force in the event of the termination or expiration of this Section 5 (FI Data), the Agreement, or the Partner-Client Agreement.

The following business are disallowed:

• Any product, service or activity that is deceptive, unfair, predatory or prohibited by one or more Card Brands

• Any sub-merchant selling goods or services that represent a violation of any law, statute or regulation

• Any sub-merchant operating outside the United States.

• Any sub-merchant submitting sales for payment that resulted from another commercial entity providing goods or services to the sub-merchant, including those businesses that may otherwise qualify themselves as a Payment Service Company or Payment Facilitator or Payments Processor.

• Any sub-merchant selling products that infringe on the intellectual property rights of others, including counterfeit goods or any product or service that infringes on the copyright, trademark or trade secrets of any third party, such as many Cyberlockers.

• Any sub-merchant accepting a card as payment for a dishonored check or for an item deemed uncollectible by another merchant

• Any sub-merchant that accepts a card at a scrip-dispensing terminal

• Adult entertainment and/or adult content websites including Electronic Commerce adult content (videotext) merchants that would include MCC’s 5967, 7273 and 7841

• Airlines including Charter Airlines

• Bestiality

• Bidding Fee Auctions including Penny Auctions

• Brand or Reputational damaging, potential or otherwise, activities including Child Pornography, Escort Services, Mail Order Brides, Occult

• Collection Agencies

• Commodity Trading or Security Trading

• Credit Counseling or Credit Repair Services

• Credit Protection or Identity Theft Protection Services

• Cruise Lines

• Currency Exchanges or Dealers

• Debt Elimination, Debt Reduction or Debt Consulting Services

• Direct Marketing: Continuity or Subscription services or merchants including MCC 5968 and 5969

• Direct Marketing-Travel Related Arrangement Services including MCC 5962

• Direct Marketing-Inbound Telemarketing including videotext services and MCC 5967

• Discount Buying Memberships/Clubs

• Discount Coupon Merchants or Online Sites

• Distressed Property Sales and/or Marketing

• Drug Paraphernalia

• Firearms and weapons including Ammunition

• Gambling Activities and Establishments including MCC 7995, lotteries, internet gaming, daily fantasy sports, contests, sweepstakes, “special incentives,” or offering of prizes as an inducement to purchase goods or services

• High interest rate non-bank consumer lending including, but not limited to, payday lending and title loans

• Infomercial merchants

• Investment or “get rich quick” merchants, businesses or programs

• Loan payments conducted on a Visa-branded credit card

• Money Transfer, Wire Transfers, Money Orders, Transmitters, and Check Cashing including merchants required to be registered as Money Service Business  Multi-Level Marketing Businesses

• “Negative option” marketing, renewal, or continuity subscription practices; marketing activities involving low-dollar trails, “pay only for shipping,” and/or “free trial” periods after which a credit card is charged periodically and/or a significantly larger amount

• Outbound Telemarketers and Telecom merchants including MCC’s 4814, 4816, and 5966

• Pawn Shops

• Prepaid Phone Cards

• Prepaid Phone Services

• Psychics and “occult” businesses

• Quasi-Cash or Stored Value

• Real Estate Flipping

• Rebate-Based Businesses

• Sale of Mobile Minutes

• Selling or Sales of Social Media Activity

• Sports Forecasting or Odds Making

• Substances designed to mimic illegal drugs

• Timeshares, including resale’s and related marketing

• Tribal Entities

• Up-Selling Merchants

By clicking to SUBMIT this application, I represent and warrant that the execution, delivery and performance of this Merchant Application and the consummation of the transactions provided hereunder have been duly authorized by all necessary action. Further, by executing below, I hereby warrant that I have full and legal authority to execute the Merchant Agreement for and on behalf of the respective parties, and no further approval or consent of any other person is necessary in connection therewith and that I have the full authorization and capacity to bind the legal entity listed herein. I further represent and warrant that I had the opportunity to be represented by independent counsel of my choice in connection with the negotiation and execution of this Merchant Agreement.

Each of the undersigned authorizes Pay Theory and its third-party partners to use credit bureau/reporting agencies and/or their own agents to verify the accuracy of all information provided herein and to assess and monitor each of the undersigned’s credit status. Each of the undersigned authorizes all such credit bureau/reporting agencies to release any information they may have pertaining to him/her to Pay Theory and its third-party partners. No sales agent of Pay Theory is authorized to make any verbal or written modification to this Merchant Application, Merchant Agreement, or any appendices, attachments, exhibits, and/or third-party agreements related thereto.

I hereby agree to comply with the Merchant Agreement, and all appendices, attachments, exhibits, and/or third-party agreements related thereto. I understand that I also may request a copy of the Merchant Agreement from Pay Theory at any time. I further understand that no strikeouts, interlineations, additions or modifications to this preprinted Merchant Application or Merchant Agreement may be made and that this Merchant Application and Merchant Agreement may be transmitted to or from Pay Theory and/or retained electronically by Pay Theory, which will constitute an original. I understand that this Merchant Application and Merchant Agreement is subject to approval by Pay Theory. I further acknowledge and agree that I will not use my merchant account and/or the services for illegal transactions, for example, those prohibited by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq, as may be amended from time to time.