TERMS OF SERVICE

Master Services Agreement

Last modified: December 7, 2023

This Master Services Agreement (this “Agreement“) governs your use of services made available by JustiFi Technologies, Inc., a Delaware corporation, with offices located at 550 Vandalia Street, Suite 105, St Paul, Minnesota 55114 (“JustiFi“). By executing an Order Form that references this Agreement, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement. If you do not have such authority, or if you do not agree with the terms and conditions of this Agreement, you must not accept this Agreement and you may not use the Services. “Customer” or “you” means the customer whose name appears on the Order Form. Customer and JustiFi may be referred to herein individually as a “Party” and collectively as the “Parties.” All capitalized terms not defined herein have the meanings set forth in the Order Form.

The Services.
1. JustiFi shall provide to Customer the software module(s) and services (collectively the “Services“) set out in the Order Form entered into between JustiFi and Customer. Certain of the Services may be subject to additional terms and conditions set forth in one or more addendums, including, but not limited to the addendums attached to this Agreement (each, an “Addendum“). Any additional Addendums not attached to this Agreement shall be deemed issued and accepted only if signed by the Parties. Services shall not include any Third-Party Services.
2. Subject to the terms and conditions of the applicable Addendum, JustiFi grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited term, license to access and use the Services solely for Customer’s internal business purposes and any other purposes permitted under the applicable Addendum. JustiFi and its licensors and processors reserve all rights in and to the Services not expressly granted to Customer.
3. Customer may not: (a) copy or otherwise reproduce or permit the copying or other reproduction of all or any part of the Services except as otherwise permitted herein or in any Addendum; (b) reverse engineer, decompile, disassemble, or create derived works based on the Services; (c) modify, adapt, translate into other programming forms or languages, or extend the Services to operate in other environments or on other platforms, except in accordance with this Agreement or any Addendum; or (d) allow access to the Services by other software products for any purpose without prior approval of JustiFi.
4. Customer will provide, at Customer’s location, all hardware, software, and communications equipment necessary to permit Customer to access and use the Services. Customer will be responsible for providing all additional equipment and internet connectivity at its own expense.
5. From time to time, JustiFi may make or offer updates to the Services, which will be governed by this Agreement and any applicable Addendum. JustiFi is not responsible for the performance of updates in connection with any unauthorized plugins installed by Customer. Except as provided on an applicable Addendum, JustiFi is not obligated to provide any updates or other modifications to the Services. Customer may purchase upgrades, which may include new features to the Services, for an additional fee not to exceed the then-current price of such upgrades offered by JustiFi.
6. From time to time, JustiFi may provide to Customer policies, procedures, documentation and specifications related to the Services (“JustiFi Policy Requirements”), all of which are incorporated by reference into this Agreement. Customer agrees that it shall comply with all requirements set forth in the JustiFi Policy Requirements, and any failure to do so constitutes a breach of this Agreement.
JustiFi Obligations. JustiFi shall:
1. Designate employees or contractors that it determines, in its sole discretion, to be capable of filling the following positions: (a) a primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “JustiFi Contract Manager”); and (b) a number of employees or contractors that it deems sufficient to perform the Services set out in each Addendum, (collectively, with the JustiFi Contract Manager, “JustiFi Representatives”).
2. Make no changes in JustiFi Representatives except: (a) following notice to Customer; (b) upon the resignation, termination, death, or disability of an existing JustiFi Representative; and (c) at the reasonable request of Customer, in which case JustiFi shall use reasonable efforts to appoint a replacement at the earliest time it determines to be commercially viable.
3. Maintain complete and accurate records relating to the provision of the Services under this Agreement. During the term of this Agreement, upon Customer’s written request, JustiFi shall allow Customer or Customer’s representative to inspect and make copies of such records in connection with the provision of the Services; provided that Customer gives JustiFi at least 10 business days advance written notice of the planned inspection, and any such inspection shall take place during regular business hours, and any such inspection shall occur no more than once per year.
4. Comply with Applicable Law to its activities under the terms of this Agreement.
5. JustiFi has established and maintains a data privacy and information security program consistent with data privacy and information security standards developed by the PCI Security Standards Council, as amended from time to time.
Customer Obligations. Customer shall:
1. Designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Customer Contract Manager”), with such designation to remain in force except: upon the resignation, termination, death, or disability of an existing Customer Contract Manager and thereafter, the Customer shall use reasonable efforts to appoint a replacement.
2. Require that the Customer Contract Manager respond promptly to any reasonable requests from JustiFi for instructions, information, or approvals required by JustiFi to provide the Services.
3. Cooperate with JustiFi in its performance of the Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable JustiFi to provide the Services, provided that any such access shall be subject to Customer’s reasonable rules, regulations and policies related to such access.
4. Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in JustiFi’s provision of the Services.
5. Comply with Applicable Law to its activities under the terms of this Agreement.
Fees and Expenses.
1. In consideration of the provision of the Services by JustiFi and the rights granted to Customer under this Agreement, Customer shall pay the fees stated in the Order Form or the applicable Addendum (“Fees”). Payment to JustiFi of such Fees and the reimbursement of expenses pursuant to this Section 4 shall constitute payment in full for the provision of the applicable Services. Unless otherwise provided in the Order Form or applicable Addendum, said Fees will be payable upon receipt by Customer of an invoice from JustiFi.
2. Customer shall reimburse JustiFi for all reasonable expenses incurred in accordance with the Services which have been previously disclosed to Customer, and all third-party costs associated with Customer’s use of the Services and pass-through costs, upon receipt by Customer of an invoice from JustiFi accompanied by receipts and reasonable supporting documentation.
3. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; and to the extent JustiFi is required to pay any such sales, use, excise, or other taxes or other duties or charges, Customer shall reimburse JustiFi for the same. Notwithstanding the previous sentence, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, JustiFi’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
4. Except for invoiced payments that Customer has successfully disputed, fees remaining unpaid for more than thirty (30) days from receipt of an invoice shall bear interest at the lesser of (a) the rate of one and one-half (1.5) percent per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse JustiFi for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which JustiFi does not waive by the exercise of any rights hereunder), JustiFi shall be entitled to suspend the provision of any Services if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
Intellectual Property. All right, title, and interest (including all intellectual property rights embodied therein) in and to the Services will remain the sole and exclusive property of JustiFi or its licensors. Neither this Agreement or any Addendum grants Customer any right or title of ownership in or to the Services, or any component thereof. Customer will not, at any time, take or cause any action, which could be inconsistent with or tend to impair the rights of JustiFi, or its affiliates, licensors, or third-party processors, in the Services. Customer will not remove or alter any proprietary or copyright notices, trademarks, or logos of Justify or its third-party processors. Customer retains ownership of its data and content that is processed or hosted by the Services, including graphics and text provided by Customer for inclusion.
Confidentiality. From time to time during the term of this Agreement, either Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“), non-public, proprietary, and confidential information of Disclosing Party (“Confidential Information“); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 6; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable laws, regulations and rules (“Applicable Laws>”) or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, notify Disclosing Party of such requirements, to the extent that notice to Disclosing Party is legally permissible, to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 6 only, Receiving Party’s group shall mean the Receiving Party’s employees, officers, directors, attorneys, accountants, and financial advisors.
Term, Termination, and Survival.
1. This Agreement shall commence as of the Effective Date and shall continue thereafter for as long as an Addendum is in effect, unless sooner terminated pursuant to Section 7.2 or 7.3.
2. Either Party may terminate this Agreement, in whole or in part, effective upon written notice to the other Party (the “Defaulting Party“) if the Defaulting Party: (a) breaches this Agreement, and the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach, or such breach is incapable of cure; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) days or is not dismissed or vacated within forty-five (45) days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
3. Notwithstanding anything to the contrary in 2(a), JustiFi may terminate this Agreement, in whole or in part, before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder: (a) and such failure continues for thirty (30) days after Customer’s receipt of written notice of nonpayment; or (b) more than two times in any twelve (12) month period.
4. The term of each Service subscription shall be as specified in the applicable Order Form. Except as otherwise set forth in the Order Form, subscriptions for each Service will automatically renew for successive one-year terms unless either Party provides written notice to the other at least ninety (90) days prior to the expiration of the then-current subscription term for such Service.
5. The rights and obligations of the Parties set forth in this 7.5 and in Sections 4, 5, 6, 8, 9, 10, and 12 through 23, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
WARRANTY
1. ALL WARRANTIES, CONDITIONS, AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW, OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTIES AS TO QUALITY, PERFORMANCE, TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, AND USAGE OF TRADE, ARE EXCLUDED FROM THIS AGREEMENT AND ANY ADDENDUM TO THE FULLEST EXTENT PERMITTED BY LAW. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND CUSTOMER’S USE OF THE SERVICES ARE AT ITS OWN RISK. JUSTIFI DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR COMPLETELY SECURE OR ERROR-FREE.
LIMITATION OF LIABILITY. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 10 AND BREACH OF CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 6, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL JUSTIFI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Indemnification.
1. JustiFi will indemnify and defend Customer and its affiliates, directors, officers, employees, and agents with respect to any claims, liabilities, damages, and expenses, including reasonable attorney’s fees (“Liabilities”), arising out of any third-party claim that the Services as provided by JustiFi infringe on any intellectual property right of any third party. Notwithstanding the foregoing, JustiFi will have no indemnification obligation to the extent that any such third-party claim is based on or related to (a) any use of the Services in violation of this Agreement or any Addendum; (b) any use of the Services in conjunction with any third-party service, data, or materials not provided by JustiFi; or (c) any material or data provided by Customer. If Customer’s use of the Services becomes, or is likely to become, the subject of an infringement claim, JustiFi may, at its option and expense (i) procure the right for Customer to continue using the Services; (ii) replace or modify the infringing components of the Services with non-infringing components of substantially equivalent functionality; or (iii) if (i) and (ii) are not commercially feasible, terminate this Agreement and/or any applicable Addendum. The foregoing states the entire liability of JustiFi with respect to infringement claims, and Customer hereby expressly waives any other remedies for such claims.
2. Customer will indemnify and defend JustiFi and its affiliates, directors, officers, employees, and agents with respect to any Liabilities, arising out of (a) any Customer content or data; (b) Customer’s breach of any law or regulation, including but not limited to the Payment Card Industry standards; or (c) a breach of any of Customer’s representations, warranties, obligations, covenants, or agreements contained in this Agreement or any Addendum.
Publicity. During the term of this Agreement, a Party may disclose in its advertising and marketing materials the logo of the other Party and a link to the other Party’s website for the purpose of advertising the relationship between the Parties.
Entire Agreement. The Order Form and this Agreement, including and together with any related Addendums, exhibits, schedules, attachments, and appendices hereto or thereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice“) must be in writing and addressed to the other Party at its address set forth in the Order Form (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid) or electronic mail. Except as otherwise provided in this Agreement, a Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, notice sent via electronic mail shall be deemed effective upon the send date of the electronic mail, and notice mailed shall be deemed effective on the third day following its placement in the mail addressed to the addressee; and if the Party giving the Notice has complied with the requirements of this Section 13.
Severability. If any term or provision of this Agreement or any Addendum is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or Addendum, as applicable, or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement or Addendum, as applicable, to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Amendments. JustiFi may modify all or any part of this Agreement or any Addendum from time to time, in which case we will update the “Last modified” date at the top of this Agreement. If JustiFi makes changes that are material, JustiFi will use reasonable efforts to notify Customer. The updated Agreement and/or Addendum will be effective as of the time of posting, or such later date as may be specified in the updated Agreement or JustiFi’s notice to you. Customer’s continued access or use of the Services after the modification have become effective will be deemed acceptance of the modified Agreement and/or Addendum. Except as set forth in this Agreement, this Agreement may not be modified except in writing and signed by an authorized representative of each Party.
Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Assignment. Customer shall not assign, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of JustiFi (not to be unreasonably withheld). Any purported assignment or delegation in violation of this Section 17 shall be null and void. No assignment or delegation shall relieve Customer of any of its obligations under this Agreement. JustiFi may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of JustiFi’s assets without Customer’s consent.
Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for provision of the Services by JustiFi shall be under its own control, Customer being interested only in the results thereof. JustiFi shall be solely responsible for supervising, controlling, and directing the details and manner of the provision of the Services. Nothing in this Agreement shall give Customer the right to instruct, supervise, control, or direct the details and manner of the provision of the Services. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Third-Party Providers. The Services may contain links to third-party materials that are not owned or controlled by JustiFi. JustiFi does not endorse or assume any responsibility for any such third-party services, information, materials, products, or services. JustiFi may reference, enable Customer to access, or promote (including through the Services) one or more services, products or promotions provided by a third party (“Third-Party Provider”) that utilizes, integrates with or is ancillary to the Services (“Third-Party Services”). If Customer accesses a third-party website, application or service, or Third-Party Service from the Services, Customer does so at your own risk, and Customer agrees that this Agreement and JustiFi’s Privacy Policy do not apply to Customer’s use of such Third-Party Services. Customer expressly relieves JustiFi from any and all liability arising from Customer’s use of any third-party websites, applications, services, or content. Customer may be required by JustiFi or Third-Party Provider to enter into terms and conditions governing access to and use of a Third-Party Services, whether attached hereto or to an Order Form or otherwise made available to Customer by JustiFi or such Third-Party Provider (“Third-Party Terms”). Access to or use of a Third-Party Service by Customer is subject to the terms of this Agreement and the applicable Third-Party Terms. In the event of any conflict between the Third-Party Terms and any other provision in this Agreement, the Third-Party Terms will prevail solely with respect to the applicable Third-Party Service. If a Third-Party Provider requires Customer to agree to changes to the relevant Third-Party Terms as a condition of Customer’s continued access to certain Third-Party Services, JustiFi will use commercially reasonable efforts to notify Customer in writing of the changes and their effective date, and Customer will not engage in further access to or use of the applicable Third-Party Services upon such effective date unless it has accepted such changes. Customer’s continued use of the applicable Third-Party Service after receipt of such notification and the effective date of such changes will constitute Customer’s acceptance of such changes. Customer acknowledges that the relevant Third-Party Provider is solely responsible for performance of its respective Third-Party Service(s) and, except as required by applicable privacy law or regulation, JustiFi has no liability for the acts or omissions of any Third-Party Provider.
No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Choice of Law. This Agreement and all related documents including all Addendums attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.
Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all Addendums and other attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the state or federal courts in the State of Delaware. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the state or federal courts in the State of Delaware. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ADDENDUMS, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY ADDENDUMS, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing the Services or any term of this Agreement or any Addendum (except for any obligations of Customer to make payments to JustiFi hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party“) reasonable control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; and (g) other similar events beyond the reasonable control of the Impacted Party (“Force Majeure Events”).

The Impacted Party shall give notice within five (5) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section 24, the other Party may thereafter terminate this Agreement upon ten (10) days’ written notice.

Data Aggregation Services Addendum

The Services. The Data Aggregation Services are described in the Order Form. JustiFi may establish, modify, or substitute equipment, processing priorities, procedures, Offerings, and Providers from time to time and in JustiFi’s sole discretion.
Compliance with Applicable Law. Customer shall be solely responsible for complying with any and all Applicable Laws (including U.S. Privacy Laws) applicable to its use of the Data Aggregation Services.
Processing Customer Data.
1. During the performance of the Data Aggregation Services, JustiFi may collect information relating to Customer and its end users, including data provided by Customer, data provided by JustiFi’s Affiliates as agreed to in future Addendums, and Personal Information (collectively “Customer Data”). For purposes of this Addendum, “Personal Information” means information that Customer discloses or for which Customer provides access to JustiFi, or information which JustiFi creates or collects on behalf of Customer, in accordance with this Addendum that (i) directly or indirectly identifies an individual, (ii) can be used to authenticate an individual and/or (iii) is defined as “personal information” or “personal data” under Applicable Laws (including U.S. Privacy Laws).
2. JustiFi will process Customer Data only to provide the Data Aggregation Services and the Offerings, at Customer’s request or direction (including as set out in the terms and conditions of this Addendum) or as otherwise permitted by Applicable Laws (including U.S. Privacy Laws), and not use or otherwise disclose or make available Customer Data for JustiFi’s own purposes without Customer’s prior written consent. JustiFi may share Customer Data with Providers, and Customer shall ensure it has obtained all consents required by Applicable Law in order for JustiFi to do so. JustiFi may aggregate, de-identify, or anonymize Customer Data and use such aggregated, de-identified, or anonymized data, which shall no longer be considered Customer Data or Personal Information, for its own research, analysis, and development purposes, including enhancements and improvements to the Data Aggregation Services.
3. Customer consents to the creation, collection, receipt, access, use, storage, disposal, disclosure and other processing of Customer Data for the purpose of the provision of the Data Aggregation Services and the Offerings.
4. Customer will: (i) comply with the terms and conditions set forth in this Addendum; (ii) be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, disclosure or other processing of Customer Data under its control or in its possession; (iii) comply with any Applicable Laws (including, as applicable, U.S. Privacy Laws) and use only secure methods, accordingly to accepted industry standards, when transferring or otherwise making available Customer Data to JustiFi; and (iv) treat JustiFi’s Information Security Policy (as defined below) as Confidential Information.
5. Customer represents and warrants that it has obtained all consents, approvals, authorizations of and provided all necessary notices to, Customer’s end users or other parties in connection with the collection, sharing, utilization and other processing of Customer Data and other information provided, whether directly or indirectly, to JustiFi for the purposes described in this Addendum. Further, Customer agrees to provide true, accurate, current, and complete information to JustiFi and Providers. Customer shall not provide any information that is unlawful, invasive of another’s privacy, or that infringes the rights of others and if Customer determines the processing of Customer Data under the Addendum does not or will not comply with Applicable Laws (including U.S. Privacy Laws), it will notify JustiFi with undue delay, and, JustiFi shall not be required to continue processing such Customer Data.
Information Security.
1. JustiFi will comply with all Applicable Laws, including applicable data privacy laws, in its creation, collection, receipt, access, use, storage, disposal, disclosure and other processing of Customer Data.
2. JustiFi will employ reasonable security measures to protect Customer Data in accordance with JustiFi’s information security policy as amended from time to time (“Information Security Policy”). The Information Security Policy shall be consistent with accepted industry standards applicable for information security.
3. If, in the course of its performance of the Data Aggregation Services under this Addendum, JustiFi has access to or will collect, access, use, store, dispose of, disclose or otherwise process credit, debit, or other payment cardholder information on Customer’s behalf, JustiFi will comply with the Payment Card Industry Data Security Standard (PCI DSS) requirements, as applicable.
Data Breach Procedures.
1. JustiFi maintains a cyber incident breach response plan in accordance with accepted industry standards (“Incident Response Plan”) and will implement the procedures required under such plan on the occurrence of a Data Breach. For purposes of this Addendum, “Data Breach” means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized access to or disclosure of, Customer Data.
2. JustiFi will notify Customer of a Data Breach as soon as reasonably practicable after JustiFi becomes aware of it but no more than 72 hours thereafter.
3. Following JustiFi’s notification to Customer of a Data Breach, the Parties will coordinate with each other, as necessary, to investigate the Data Breach in accordance with JustiFi’s current Cyber Incident Response Plan.
Security Controls Review or Audit. At least annually, JustiFi will obtain security controls review or audit performed by an independent third party based on recognized industry standards. JustiFi will make results of such controls review or audit available to Customer upon request and will timely address any noted exceptions.
U.S. Privacy Laws.
1. To the extent that Customer is subject to the California Consumer Privacy Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Utah Consumer Privacy Act, the Virginia Consumer Data Protection Act or similar U.S. state privacy laws that require recipients of Personal Information to comply with one or more of the contractual commitments set out in this Addendum and come into effect after December 31, 2023 (together, “U.S. Privacy Laws”), Customer discloses or makes available to JustiFi Customer Data containing Personal Information subject to such laws, and the disclosure of such data would be a “sale” under U.S. Privacy Laws, JustiFi will, to the extent required of a “service provider” or “processor” under U.S. Privacy Laws in connection with processing such data:
  1. Process Customer Data in compliance with U.S. Privacy Laws, including providing the same level of privacy protection as is required by U.S. Privacy Laws, and notify Customer if JustiFi makes a determination that it can no longer meet its obligations under U.S. Privacy Laws. Upon reasonable written notice that Customer reasonably believes JustiFi is using Customer Data in violation of U.S. Privacy Laws or this section 7, Customer shall take reasonable and appropriate steps to help ensure that JustiFi uses the Customer Data in a manner consistent with Customer’s obligations under U.S. Privacy Laws and stop and remediate any unauthorized use of the Customer Data.
  2. Not “sell” or “share” Customer Data, nor retain, use or disclose the Customer Data outside the direct business relationship with Customer or for any purpose other than for the specific purpose of performing the Data Aggregation Services or the Offerings, or as otherwise set out in this Addendum.
  3. Except to perform a business purpose or as otherwise permitted by U.S. Privacy Laws, not combine the Customer Data received from, or on behalf of, Customer with any Personal Data that may be collected from JustiFi’s separate interactions with the individual(s) to whom the Customer Data relates or from any other sources.
  4. Ensure that each employee or other person processing Customer Data is subject to a duty of confidentiality with respect to such Customer Data, and only engage subcontractors to process Customer Data on its behalf after providing Customer with an opportunity to object and pursuant to a written contract that requires the subcontractor to materially comply with JustiFi’s obligations in this section 7.
  5. Taking into account the nature of the processing, reasonably assist Customer through appropriate technical and organizational measures in (A) responding to requests from individuals pursuant to their rights under U.S. Privacy Laws, including by providing, deleting or correcting the relevant Customer Data, or by enabling Customer to do the same, (B) implementing reasonable security procedures and practices appropriate to the nature of the Customer Data to protect the Customer Data from unauthorized or illegal access, destruction, use, modification, or disclosure, and (C) entering into this Addendum.
  6. With Customer, and taking into account the context of the processing, implement appropriate technical and organizational measures designed to provide a level of security appropriate to the risk and establish a clear allocation of the responsibilities between them to implement such measures.
  7. Upon reasonable request of Customer, make available to Customer all information in its possession necessary to demonstrate JustiFi’s compliance with its obligations under U.S. Privacy Laws, including by providing reports of the reviews and audits referred to in section 6 of this Addendum.
  8. At Customer’s written direction, delete or return Customer Data to Customer as at the end of the provision of the Service, unless retention is required by Applicable Law (including U.S. Privacy Laws), this Addendum or the Agreement.
Additional Service Terms. JustiFi may only change the Data Aggregation Services where such change is required to comply with Applicable Law, is expressly permitted by the Data Aggregation Services, or: (i) is commercially reasonable; (ii) does not result in a material reduction of the security of the Data Aggregation Services; (iii) does not expand the scope of or remove any restrictions on JustiFi’s processing of Customer Data; and (iv) does not otherwise have a material adverse impact on Customer’s rights under this Addendum. If JustiFi makes a material change to this Addendum, JustiFi will use commercially reasonable efforts to notify Customer of any such change. JustiFi will notify Customer at least 12 months before discontinuing any Service (or associated material functionality) unless JustiFi replaces such discontinued Service or functionality with a materially similar Service or functionality.
Additional Termination Rights. In addition to JustiFi’s rights to terminate in accordance with the Agreement, JustiFi may terminate this Addendum immediately in the event of Customer’s violation of Applicable Law (including U.S. Privacy Laws) or noncompliance with this Addendum.
Delays and Unavailability of Offerings. JustiFi cannot foresee technical or other difficulties that may arising during the course of performance of the Data Aggregation Services and the provision of the Offerings, which may result in the loss of data or other interruptions to the Services. JustiFi does not assume responsibility for any errors, delays, damages, or costs of any type arising out of Customer’s use of the Data Aggregation Services.
Use of Plaid Services. As part of utilizing Data Aggregation Services, Customer consents to use a service offered by Plaid Inc. (“Plaid”). Customer acknowledges and agrees that Plaid’s Privacy Policy will govern Plaid’s use of information it collects about Customer or that Customer provides to Plaid, and Customer expressly agrees to the terms and conditions of Plaid’s Privacy Policy and its Terms and Conditions. Further Customer expressly grants Plaid the right, power, and authority to access and transmit Customer information as reasonably necessary for Plaid to provide its services to Customer or for Customer to utilize the Data Aggregation Services. To the extent Customer previously utilized account linking and aggregation services through JustiFi or its service providers, Customer expressly authorizes and directs JustiFi and Plaid to transmit any information or data (including any Personal Information) in connection with those services to Plaid so that Plaid and/or JustiFi can offer its respective services, including as set out in this Addendum.
No Endorsements. Customer understands that nothing herein shall be considered to be an endorsement of any Offering.
Supplemental Warranty Disclaimer. EXCEPT FOR THOSE WARRANTIES EXPRESSLY PROVIDED HEREIN OR IN THE AGREEMENT, IN ADDITION TO THE WARRANTY DISCLAIMER IN THE AGREEMENT, JUSTIFI MAKES NO WARRANTY THAT THE QUALITY OF ANY OFFERING PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE DATA AGGREGATION SERVICES WILL MEET CUSTOMER’S EXPECTATIONS.
Limitation of Liability. IN ADDITION TO THE LIMITATION OF LIABILITY IN THE AGREEMENT, WHICH SHALL BE SUPPLEMENTAL AND IN ADDITION TO THE LIMITATION OF LIABILITY IN THIS SECTION 12, JUSTIFI SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, OR END-USERS REGARDING ANY ACT OR FAILURE TO ACT BY ANY PROVIDER OR IN ANY WAY RELATED TO THE OFFERINGS.
Indemnity. Customer is responsible for its own actions or inactions, those of its officers, directors, shareholders, employees, and agents, including any third-party service providers. Customer will defend, indemnify, and hold JustiFi harmless from any loss, claim, liability, or expense, including, without limitation, attorneys’ fees and costs, arising out of or in connection with Customer’s failure to observe or comply with the provisions of this Addendum, including any actions or inactions of its officers, directors, shareholders, employees, and agents, including any third-party service providers. This indemnity shall survive the expiration or termination of the term of this Addendum.
Provider Terms and Conditions. Providers may, as applicable, have separate terms and conditions that will supplement the terms and condition contained in this Addendum and the Agreement (“Supplemental Terms and Conditions”). When applicable, such Supplemental Terms and Conditions shall be set forth in the Order Form, which are incorporated herein by reference. Customer understands and agrees that the provision of the Services and the Offerings are subject to Customer’s agreement to be bound by the Supplemental Terms and Conditions.

Insurance Services Addendum

Publishing Insurance Programs.
1. The Insurance Services are described in the Order Form. JustiFi may modify the available Insurance Programs from time to time and in JustiFi’s sole discretion.
2. JustiFi shall follow procedures and time schedules it deems appropriate to timely perform the Insurance Services.
Compliance with Applicable Law. Notwithstanding anything in the Agreement to the contrary, Customer shall be solely responsible for complying with any and all Applicable Laws appliable to the use and the publishing of the Insurance Programs.
Collection of End-User Data. Customer consents to JustiFi collecting and disclosing information related to the disclosure, publishing, and purchase of Insurance Programs by Customer’s end-users and consents to JustiFi using such information to perform the Insurance Services and its responsibilities in connection with this Addendum, including the provision of such information to Insurance Partners.
Intellectual Property Rights. Customer shall not use the logo, service marks, registered trademarks, or other intellectual property rights, as the case may be, of Insurance Partners without the prior written consent of JustiFi and/or such Insurance Partner.
Third-Party Services. Customer understands that Insurance Services are provided via, or in connection with, a Third-Party Provider. Customer understands that the performance of such Insurance Services is dependent on Third-Party Providers, and JustiFi has no control over such Third-Party Providers. JustiFi shall not be liable for the acts or omissions of any Third-Party Provider in connection with the Insurance Services, and Customer waives any claims you may have against JustiFi for failure of Insurance Services to perform as expected and for any failures or performance of Third-Party Providers or Third-Party Services. If Customer has a dispute relating to Insurance Services provided by Third-Party Providers, Customer releases JustiFi (and its affiliates and subsidiaries, and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, Customer expressly waives any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which Customer may know or suspect to exist in your favor at the time of agreeing to this release.
Additional Termination Rights. In addition to JustiFi’s rights to terminate in accordance with the Agreement, JustiFi may terminate this Addendum and the Insurance Services immediately in the event (a) Customer’s violation of Applicable Law or noncompliance with this Addendum; (b) excessive losses on the Insurance Programs; (c) if the underlying insurance company terminates its contract with an Insurance Partner, leaving no available Insurance Programs; or (d) the contract between an Insurance Partner and JustiFi is terminated.
Delays and Unavailability of Programs. Insurance Partners shall not be liable for any delay in or failure of its performance under this Addendum for the unavailability of the Insurance Programs to the extent such unavailability is caused by a Force Majeure Event.
Limitation of Liability. JUSTIFI SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, OR END-USERS REGARDING ANY ACT OR FAILURE TO ACT BY AN INSURANCE PARTNER OR ANY WAY RELATED TO THE INSURANCE PROGRAMS.
Idemnity. Customer is responsible for its own actions or inactions, those of its officers, directors, shareholders, employees, and agents, including any third-party service providers. Customer will defend, indemnify, and hold JustiFi harmless from any loss, claim, liability, or expense, including, without limitation, attorneys’ fees and costs, arising out of or in connection with Customer’s failure to observe or comply with the provisions of this Addendum, including any actions or inactions, those of its officers, directors, shareholders, employees, and agents, including any third-party service providers. This indemnity shall survive the expiration or termination of this Addendum.

Lending Services Addendum

Lending Programs.
1. The Lending Services are described in the Order Form. JustiFi may modify the available Lending Programs from time to time and in JustiFi’s sole discretion.
2. JustiFi shall follow procedures and time schedules it deems appropriate to timely perform the Lending Services. JustiFi may establish, modify, or substitute equipment, processing priorities, procedures, or Lending Programs as reasonably necessary in its provision of the Lending Services.
Compliance with Applicable Law. Customer shall be solely responsible for complying with any and all Applicable Laws appliable to the use and the publishing of the Lending Programs.
Collection of End-User Data. Customer consents to JustiFi collecting and disclosing information related to the disclosure, publishing, and purchase of Lending Programs by Customer’s end-users and consents to JustiFi using such information to perform the Lending Services and its responsibilities in connection with this Addendum, including the provision of such information to Lending Partners.
Intellectual Property Rights. Customer shall not use the logo, service marks, registered trademarks, or other intellectual property rights, as the case may be, of Lending Partners without the prior written consent of JustiFi and/or such Lending Partner.
Third-Party Services. Customer understands that Lending Services are provided via, or in connection with, a Third-Party Provider. Customer understands that the performance of such Lending Services is dependent on Third-Party Providers, and JustiFi has no control over such Third-Party Providers. JustiFi shall not be liable for the acts or omissions of any Third-Party Provider in connection with the Lending Services, and Customer waives any claims you may have against JustiFi for failure of Lending Services to perform as expected and for any failures or performance of Third-Party Providers or Third-Party Services. If Customer has a dispute relating to Lending Services provided by Third-Party Providers, Customer releases JustiFi (and its affiliates and subsidiaries, and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, Customer expressly waives any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which Customer may know or suspect to exist in your favor at the time of agreeing to this release.
Additional Termination Rights. Notwithstanding the foregoing, in addition to JustiFi’s rights to terminate in accordance with the Agreement, JustiFi may terminate this Addendum and the Lending Services immediately in the event (a) Customer’s violation of Applicable Law or noncompliance with this Addendum; (b) excessive losses on the Lending Programs; (c) if the underlying lending company terminates its contract with an Lending Partner, leaving no available Programs; or (d) the contract between an Lending Partner and JustiFi is terminated.
Delays and Unavailability of Programs. Lending Partners shall not be liable for any delay in or failure of its performance under this Addendum for the unavailability of the Lending Programs to the extent such unavailability is caused by a Force Majeure Event.
Limitation of Liability. JUSTIFI SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, OR END-USERS REGARDING ANY ACT OR FAILURE TO ACT BY AN LENDING PARTNER OR ANY WAY RELATED TO THE LENDING PROGRAMS.
Indemnity. Customer is responsible for its own actions or inactions, those of its officers, directors, shareholders, employees, and agents, including any third-party service providers. Customer will defend, indemnify, and hold JustiFi harmless from any loss, claim, liability, or expense, including, without limitation, attorneys’ fees and costs, arising out of or in connection with Customer’s failure to observe or comply with the provisions of this Addendum, including any actions or inactions, those of its officers, directors, shareholders, employees, and agents, including any third-party service providers. This indemnity shall survive the expiration or termination of this Addendum.

Payment Facilitator-As-A-Service Addendum

The Services. The Payment Facilitator Services are described in the Order Form. Customer is in the business of providing vertical SaaS platform services to its customers. JustiFi is a payment-facilitator-as-a-service (PfaaS) provider and is in the business of providing payment processing services to third parties. Customer desires to obtain from JustiFi the Payment Facilitator Services and JustiFi is willing to provide the Payment Facilitator Services to Customer, subject to the terms and conditions of this Addendum and the Agreement. As part of the Payment Facilitator Services, JustiFi will provide (i) sub-merchant onboarding and underwriting services to Customer’s end users; (ii) APIs and other technologies to Customer to make the Payment facilitator Services available to Customer’s end users, to the extent approved; (iii) support to Customer and its end users as deemed appropriate by JustiFi; and (iv) electronic funds transfer, authorization, processing, and settlement services and gateway and network services for card transactions and other electronic funds transfers in accordance with the Payment Processing Services Addendum to the Master Services Agreement to platform and sub-merchants, and Customer shall ensure such platforms and sub-merchants agree to the terms and conditions of the Payment Processing Services Addendum and any other agreements required by JustiFi or its bank partner. To receive this Payment Facilitator Services, Customer must agree to the Payment Facilitator Processing Services Addendum, and for Customer’s customers or sub-merchants to receives any payment processing services, such customers and sub-merchants must be approved by JustiFi and agree to the terms required by JustiFi, which may include the Payment Processing Services Addendum.
Customer Obligations. In the course of JustiFi’s provision of the Payment Facilitator Services to Customer, Customer will monitor transaction activity to screen for fraud, money laundering, and terrorist financing, and will notify JustiFi if Customer suspects fraud or violations of Applicable Law. Customer has and will maintain controls to track and mitigate high-risk financial activity. Customer will ensure it and each of the platforms and sub-merchants are Payment Card Industry (PCI) compliant. Customer will cooperate with JustiFi in the management of any sub-merchant disputes and chargebacks. Sub-merchant bears primary financial responsibility for sub-merchant disputes and chargebacks and Customers bears ultimate financial responsibility for sub-merchant disputes and chargebacks.

Upon JustiFi’s request, Customer agrees to make all reasonably required technical and risk mitigation updates to the Customer’s services, goods and digital properties in an effort to maintain the security of the Payment Facilitator Services and compliance with Applicable Laws, rules, and industry standards. Customer agrees to promptly respond to any complaints from Customer’s end users communicated to Customer, and to communicate such complaints and the information surrounding such complaints to JustiFi to the extent related to the Payment Facilitator Services. Customer agrees to perform its respective duties and obligations hereunder in compliance with all applicable federal, state, and local laws, rules, regulations, and industry standards. Customer shall at all times remain liable for the security of its platform, services, and systems. Customer shall refrain from using the Payment Facilitator Services to assist or participate in any illegal activity, or any other activity prohibited by JustiFi. Customer agrees to promptly notify JustiFi if Customer becomes aware of any illegal or prohibited activity.

Payment Processing Services Addendum

Electronic Payments Services.
1. This Addendum is being entered into by JustiFi for itself and on behalf of and as agent of Bank (as defined below). Customer engages JustiFi and Bank to provide the Payment Processing Services, including electronic funds transfer, authorization, processing, and settlement services and gateway and network services for card transactions and other electronic funds transfers (“Transactions“). The Payment Processing Services include routing and processing transactions for clearing and settlement through electronic funds transfers network(s) (“Payment Networks”) owned or licensed by VISA, MasterCard, Discover, American Express and/or any other payment network. Customer authorizes JustiFi to submit Transactions to and receive settlement from each Payment Network on behalf of Customer. Bank is a third-party beneficiary to this Addendum and may exercise any of its or JustiFi’s rights hereunder.
2. JustiFi and Bank shall follow procedures and time schedules it deems appropriate to timely perform the Payment Processing Services. JustiFi may establish, modify, or substitute equipment, processing priorities, programs, or procedures as reasonably necessary to accommodate processing demand for the System.
3. Customer will provide JustiFi any and all data, instructions, and materials (“Customer Materials”) from time to time during the term of this Addendum as is required for JustiFi to perform the Payment Processing Services. Customer will be solely responsible for creating, managing, reviewing, and otherwise controlling Customer Materials shall be responsible for complying with any and all Applicable Laws applicable to the use, and the method and manner of disclosure thereof. Customer agrees that JustiFi may store, disclose, and use the Customer Materials provided to JustiFi by Customer under this Addendum to the extent and only in such manner that such storage, disclosure, and use shall be for purposes of performing the obligations of JustiFi under this Addendum or for purposes permitted under federal, state, or local statutes, regulations.
4. From time to time, JustiFi and Bank may make or offer ACH services to Customer subject to the terms of Attachment 1 and compliance with Nacha rules and regulations (“Nacha Rules”) and any other rules or requirements provided to Customer by JustiFi or Bank from time to time.
Compliance with Applicable Law and Operating Regulations. Customer shall comply with Applicable Law and the Operating Regulations, as amended from time to time.
Electronic Payments Services.
1. Customer consents to JustiFi and Bank collecting and disclosing Transaction Data, Customer data, and other information about Customer to Bank and the Payment Networks. Customer consents to Bank and the Payment Networks using such information to perform their responsibilities in connection with this Addendum, promote the Payment Networks, perform analytics and create reports, and for any other lawful business purposes including commercial marketing communication purposes and important transactional or relationship communications from the Payment Networks. If Customer desires to opt-out of marketing messages, Customer shall notify JustiFi of its intent to opt-out. Opting out of marketing messages will not preclude Customer from receiving important transactional or relationship communications from a Payment Network, Bank, and JustiFi.
  1. Sub-merchant bears primary financial responsibility for sub-merchant Transactions, disputes, chargebacks and any liability, fines, penalties or losses related to Transactions, whether incurred by JustiFi or Bank (collectively, “Transaction Losses”) and Customer bears ultimate financial responsibility for Transaction Losses. JustiFi may hold Customer responsible for Transaction Losses, but it will first request payment from sub-merchant (request may be made through any communication means, including electronic mail). Thereafter, Customer is responsible, and shall reimburse JustiFi and Bank, for all Transaction Losses. Except as specifically set forth in this subsection, JustiFi has no collections or demand obligation with respect to sub-merchant before requiring Customer to reimburse or pay JustiFi or Bank for any Transaction Losses.
Card Acceptance Procedures.
1. Visa Chargeback Auto Acceptance Response Service. To the extent JustiFi and Bank make available to Customer the Visa Chargeback Auto Acceptance Response Service, Customer agrees to comply with Schedule B
2. Card Not Present.
  1. CNP Transactions. Upon prior written approval by JustiFi, Customer may accept Card Not Present (“CNP”) transactions. JustiFi reserves the right to terminate CNP transactions in the event that there is any change to Customer’s business, including any material change in the customers, products, management, or employees of the business. If at any time the volume of CNP transactions substantially exceeds the projected annual volume stated on the Customer’s application, or if at any time JustiFi or Bank suspect fraud, money laundering, or violations of any laws, regulations, rules, or industry standards, JustiFi and Bank may, in its sole and absolute discretion and in addition to other remedies that JustiFi and Bank may have: (i) refuse to process the excessive or suspect CNP transactions; (ii) process the CNP transactions and retain the funds received from processing until such time as the excess or suspect charges are found to be valid or invalid and processed in accordance with Applicable Laws, regulations, rules, and industry standards; (iii) suspend the CNP transactions; (iv) terminate or amend this Addendum and/or the Agreement.
  2. Timing of Charges. You may not submit a Card charge to Bank until you have shipped the goods or delivered the services that were purchased. There are some situations in which Payment Network Rules allow advance payments. Please contact PF Supplier if you have questions.
  3. Procedures. Customer understands and agrees that CNP Transactions: (A) do not require the Cardholder’s signature on the Sales Draft or sales slip (with the exception of Order Forms authorizing a Recurring Transaction, which will be authorized by the Cardholder electronically); (B) require the Merchant to obtain the valid Expiration Date for each Card used for a CNP Transaction; and (C) require the Expiration Date of the Card be submitted as part of the Authorization process.
  4. Authorizations. Customer understands that Authorizations for CNP Transactions are subject to Chargeback and such Authorizations do not guarantee the validity or collectability of the Card Transaction. Customer agrees to take reasonable additional steps to verify the identity of the authorized Cardholder on these types of transactions, especially when merchandise is shipped to a third party. Customer acknowledges and agrees that the receipt of an Authorization code indicating approval does not guarantee that the CNP Transaction will not be subject to a Chargeback. Customer is encouraged to use (when not prohibited under Applicable Law) fraud reduction systems offered by the Card Networks, such as AVS and CVV2/CVC2 in CNP Transactions.
  5. Document Retrievals. In order to satisfy a Retrieval Request for CNP Transactions, the following Transaction receipt information must be provided by Customer: (A) the Cardholder Account number, (B) the Card expiration date, (C) the Cardholder name, (D) the Transaction date, (E) the Transaction amount, (F) the Authorization code, (G) the Merchant’s name, (H) the Merchant’s location, (I) a description of the goods or services, (J) the “ship to” address, and (K) the AVS response code (if AVS was used), unless other requirements are specified in Payment Network Rules.
  6. Card Transaction Rules. If Bank authorizes Customer to accept Electronic Commerce Transactions, you agree to comply with all the provisions of the Operating Regulations pertaining to Electronic Commerce Transactions and the following requirements:
    1. You shall at all times maintain a secure site for the transmission of data relating to the processing of Electronic Commerce Transactions. You shall be responsible for ensuring, obtaining and maintaining site security, for the encryption of all data, and for any and all storage of data both in electronic and physical form.
    2. You must identify each Electronic Commerce Transaction as such when submitted by using the appropriate Electronic Commerce Transaction indicator values specified by the Payment Networks.
    3. You may not submit a request for Authorization for an Electronic Commerce Transaction that has failed a 3-D Secure Authentication Request, if you are using 3-D Secure Authentication.
    4. You shall display on your web site in a prominent manner: (a) the address of the Merchant’s Principal Place of Business, including Merchant’s country of domicile, located on the same screen view as the checkout screen used to present the total purchase amount, or within the sequence of web pages the Cardholder accesses during the checkout process; (b) a complete and accurate description of the goods or services offered; (c) your merchandise return and refund policy clearly displayed on the checkout screen or on the sequence of web pages before final checkout; (d) your consumer data privacy policy and the method of transaction security used to secure cardholder account data during the ordering and payment process; (e) a customer service contact, including electronic mail address or telephone number; (f) Transaction currency; (g) export restrictions (if known); and (h) your delivery/fulfillment policy.
    5. You shall provide Cardholders a secure transaction method, such as Secure Socket Layer or 3-D Secure.
    6. Each website operated by or for you must display the Marks of the Payment Networks for the Card types which are accepted by the Customer, as specified in the Payment Network Rules. You may only accept the Card types specified in your Customer Application and approved by Bank. If you accept a different Card type, Bank may process the resulting Transaction subject to its standard terms for acceptance of such Card type, but Bank will not be required to process additional Card type Transactions. You must discontinue accepting such other Card types unless we and Bank agree in writing to modify this Addendum.
    7. You agree to include, in addition to the other data required under the Operating Regulations the following data on a Transaction receipt completed for an Electronic Commerce Transaction: (a) Your Merchant name most recognizable to the cardholder, such as: Merchant’s “doing business as” name or Merchant’s “universal resource locator” (URL), or Merchant name used in the Clearing Record; (b) Customer service contact information including telephone country code and area code (If you deliver goods or services internationally, Merchant must list both local and internationally accessible telephone numbers); (c) Terms and conditions of sale, if restricted; (d) The exact date any free trial period ends, if offered; (e) Cancellation policies; (f) Merchant’s online address; and (g) A unique transaction identification number. For receipts completed by internet payment service providers, see additional requirements set forth in the Payment Network Rules.
    8. You will provide a completed copy of the Transaction record to the Cardholder at the time the purchased goods are delivered or services performed. You may deliver the Transaction receipt in either of the following formats: (a) electronic (e.g., e-mail or fax), or (b) paper (e.g., hand-written or terminal-generated). You shall not transmit the Cardholder Account number or card expiration date to the Cardholder over the Internet or on the Transaction receipt. You must include the Payment Network Mark and the last 4 digits of the Card used for the Transaction. You must not store a card verification value or similar security code subsequent to authorization.
    9. You may not store Card Account Numbers or other credentials for future use without the approval of PF. If approval is granted, you must follow procedures for collecting, storage and use of the Card credentials as required by Payment Network Rules, by Bank and PF, including obtaining the Cardholders Agreement to such storage and future use in the form and including content as prescribed by Payment Network Rules and disclosure of applicable return and refund policies.
3. Authorization. Customer will submit to JustiFi a Transaction only if the Transaction is made or approved by the Cardholder who is issued the Card used in the Transaction. Customer will obtain Authorization for the total amount of the Transaction, including the tip and tax, if appliable, and shall record the positive Authorization code on the Sales Draft prior to completing the Transaction. Such Authorization must be obtained for every Transaction on the transaction date and prior to completing the Transaction, unless otherwise specified in the Operating Regulations. If Customer completes a Transaction without Authorization, Customer will be responsible for any Chargeback of the Transaction and this Addendum and/or the Agreement shall be subject to immediate termination without notice.
4. Declines or Illegal Transactions. Customer shall not submit a Card Transaction for processing that (i) has received a decline response unless the Card Transaction receives a subsequent approval in accordance with Operating Regulations or (ii) Customer knows or should have known is illegal in either the Customer’s jurisdiction or the Cardholder’s jurisdiction.
5. Recovery of Cards. Customer shall use its best efforts, by reasonable and peaceful means, to retain or recover any Card (i) if Customer is advised by the Processor to retain it, (ii) if Customer has reasonable grounds to believe such Card is counterfeit, fraudulent, or stolen, or (iii) if the Card’s embossed account number, indent printed account number, and/or encoded account number do not match, or an unexpired Card does not have the appropriate hologram on the Card face. The obligation of Customer to retain or recover a Card imposed by this section does not authorize a breach of the peace or any injury to persons or property, and Customer will hold JustiFi and its licensors harmless from any claim arising from any injury to person or property or other breach of the peace.
6. Transaction Records. Customer shall record each Card Transaction and Credit Voucher by following procedures in a format and manner specified by JustiFi and using records such as Sales Drafts, sales slips, or electronic processing records and methods, as directed by JustiFi. Customer will complete each sale as a single Transaction, except as approved by JustiFi and Bank in writing. Customer will deliver to the Cardholder an accurate and complete copy of the Transaction, no later than the time of delivery of the goods or performance of the services, using a format approved by the Payment Networks. Customer must provide on the Cardholder’s copy of the Transaction the truncated Card account number (last four digits only) of the Cardholder. Customer must not request a card verification value or similar security code from the Cardholder for a card-present Transaction.
7. Returns; Price Adjustments and Credit Vouchers.
  1. Returns Policy. Customer may limit returned merchandise or limit price adjustments, to the same extent as for sales not involving a Card, provided Customer properly discloses its policy to the Cardholder before the sale, the limits are properly disclosed on the Sales Draft before the Cardholder signs in, and the purchased goods or services are delivered to the Cardholder at the time the Card Transaction takes place. Proper disclosure means the words such as “NO REFUND,” “EXCHANGE ONLY,” or “IN STORE CREDIT ONLY” (or the applicable policy) are printed in large letters near the signature line on all copies of the Sales Draft prior to obtaining the Cardholder’s signature on the Sales Draft. Customer shall submit any changes to its return policy to JustiFi in writing at least thirty (30) days before the change and Customer will not implement any change to which JustiFi objects. JustiFi may retain a copy of the request, including the new return policy, and the old return policy. Customer’s policies will not override the Operating Regulations and will not prevent Chargebacks to Customer under Operating Regulations.
  2. No Refunds in Cash. Customer shall not make refunds or adjustments for a Card Transaction in cash (except when required by Applicable Law), but will submit to JustiFi a Credit Voucher for a refund or Adjustment to the Cardholder Account within three (3) Business Days of the refund or Adjustment and deliver to the Cardholder a copy of the Credit Voucher at the time the refund or Adjustment is made. The Credit Voucher must include the refund date and amount and a brief description of the refund or Adjustment in sufficient detail to identify the Card used and original Charge. The amount of the Credit Voucher must not exceed the amount of the original except for any amount which Customer agrees to reimburse the Cardholder for return postage. Customer may not deliver a Credit Voucher to JustiFi for any refund or Adjustment of a purchase not originating as a Transaction with the same Cardholder requesting the refund or Adjustment, a Transaction not made with Customer, or a Transaction not originally processed by JustiFi. Customer will not complete a Credit Voucher for a Card issued to it or its principals or employees except for a valid refund of a Transaction originating with Customer. Customer may not receive money from a Cardholder and subsequently deliver to JustiFi a Credit Voucher to make a deposit to the account of the Cardholder. JustiFi may delay processing Credit Vouchers on any day to the extent they exceed the total of valid Charges presented on that day and the balance in the Custodial Account available to cover the Credit Vouchers, until the sum of valid Charges and the balance in the Custodial Account is sufficient to cover the Credit Vouchers.
  3. Post-termination Credits. After this Addendum terminates, JustiFi is not obligated to process any Credit Voucher that Customer submits. All Chargebacks related to Credit Vouchers will be Customer’s responsibility.
8. Prepayments. Customer may deposit a Card Transaction for prepayment if it advises the Cardholder of the immediate billing at the time of the Transaction, for: (i) prepayment of services, excluding estimates for services to be provided and (ii) full payment of custom ordered merchandise, manufactured to the Cardholder’s specifications.
9. Customer Locations. Customer shall promptly provide JustiFi with the current address of each of its offices and locations. Customer shall permit JustiFi and/or its licensors to: (i) identify the location of each Card Transaction on the Sales Draft; and (ii) include this identification in the clearing record submitted to JustiFi.
10. Document Requests. Customer shall respond to all Transaction Documentation Requests (Retrieval Requests) within the timeframes specified in the applicable Operating Regulations. If Customer does not respond to a Transaction Documentation Request or the response is late or incomplete, Customer shall be subject to Chargeback of the Transaction even if otherwise valid.
11. Intellectual Property Rights.
  1. Display of Card Brands. Customer shall display Visa, Mastercard, Discover Network, and American Express, if applicable, other Payment Network decals, Marks, and advertising and promotional materials in compliance with the Operating Regulations. Customer shall only display Visa, Mastercard, Discover Network, or American Express approved decals, Marks and advertising and promotional materials for the Card type(s) that Customer selected on the Application as approved by JustiFi. Customer is prohibited from using each Payment Network’s Marks other than as expressly authorized in writing by JustiFi. Customer shall not use the Payment Network Marks other than to display decals, signage, advertising and other forms depicting the Payment Network Marks in the forms that are provided to Customer by JustiFi. Customer may use the Payment Network Marks only to promote the payment services covered by the Payment Network Marks by using them on decals, indoor and outdoor signs, websites, advertising materials and marketing materials. Customer shall not use the Payment Network Marks in any way that may give a customer the impression that the products or services offered by Customer are sponsored or guaranteed by the owners of the Payment Network Marks. Customer shall modify or cease any non-compliant usage of Payment Network Marks within five (5) Business Days of written notice; failure to comply with such notice shall be a material breach of this Addendum and the Agreement. Customer’s use of Payment Network Marks is subject to the terms herein. Customer shall cease all use of Payment Network Marks upon termination of this Addendum for any reason.
  2. JustiFi, Bank, Processor, and Payment Network Marks. Customer shall not use the logo, name, trademark, or service mark of JustiFi, its licensors, and/or Processor in any manner, including without limitation, in any advertisements, displays, or press releases, without the prior written consent of JustiFi, its licensors, or Processor, as applicable. Customer will not contest the ownership of the Payment Networks’ marks for any reason. Payment Network may at any time, immediately and without advance notice, prohibit Customer from suing such Payment Network’s marks for any reason. Notwithstanding the foregoing, Customer may use Processor Marks in connection with Optional Services as expressly permitted in the applicable Schedule to this Addendum.
Non-Bank Card Transactions.
1. Non-Bank-Cards. Non-Bank Card transactions that are provided to Customer include certain transactions made using Discover Network and American Express, as described below. The Payment Processing Services provided, transactions processed, and other matters contemplated under this Section 5 are subject to all of the terms and conditions of this Addendum, as applicable, except to the extent the terms of this Section 5 or the applicable schedule directly conflict with another provision of this Addendum, in which case the terms of this Section 5 and the applicable schedule will control. Customer authorizes JustiFi and its licensors to share information from Customer’s Application with American Express, Discover Network, and any other non-bank payment networks
2. American Express. If Customer accepts American Express, Customer agrees and understands that if, based upon Customer’s anticipated Card Transaction volume Customer does not qualify for the OptBlue Program but has otherwise been approved for accepting American Express transactions, Customer’s authorizations and settlements will be obtained from and funded directly by American Express. American Express may provide Customer with its own agreement that governs those transactions. Any additional fees charged by American Express for these services will be billed to Customer. JustiFi and its licensors assume no liability with regard to any such transactions, including but not limited to the funding and settlement of American Express transaction.
  1. Customer acknowledges that it may be converted from the OptBlue Program to a direct Card acceptance relationship with American Express if and when Customer becomes a High CV Merchant. Upon conversion, Customer expressly agrees (A) the Customer will be bound by American Express’ then current Card Acceptance Agreement, (B) American Express will set pricing and other fees payable by the Customer for Card Acceptance, and (C) American Express will be responsible for settlement in accordance with the American Express Card Acceptance Agreement.
  2. American Express is a third-party beneficiary of this Addendum and may enforce the terms of this Addendum against Customer. Notwithstanding the foregoing, American Express shall have no obligations to Customer.
  3. Customer may opt out of accepting American Express Cards at any time without directly or indirectly affecting its rights to accept any other charge, credit, debit, stored value or smart cards, account access devices, or other payment cards, services, or products.
3. Discover Network. As to Discover Network Cards, Customer may not use, store, or disclose Card Transaction data or Customer information except as permitted under the terms of the Discover Operating Regulations, including the technical specifications and the Dispute Rules Manual. Customer agrees that it may not require a minimum or maximum purchase amount for use of Discover Network Card or impose any surcharge or convenience fee on Card Transactions except as permitted by the Discover Operating Regulations and Applicable Law.
4. JCB; Diner’s Club; UnionPay; DinaCard. If Customer accepts JCB, Diners Club International, UnionPay, Bccard, and Dinacard Customer agrees to be bound by the Discover Network provisions of this Addendum as set forth in this Section 6. Customer acknowledges and agrees that JCB Diners Club International, and UnionPay transactions will be processed under and subject to Discover Network Payment Network Rules.
5. Provisional Payments. All credits to the Custodial Account and payments to JustiFi are provisional and are subject to collection by JustiFi and its licensors.
6. Non-Bank Card Transactions are provided to you by Processor and include certain Transactions made using Discover Network and American Express, except the American Express OptBlue® Program, as described in Schedule A to this Addendum. The Payment Processing Services provided, transactions processed, and other matters contemplated herein are subject to all of the terms and conditions of this Addendum, as applicable, except to the extent the terms of this subsection or the applicable Schedule directly conflict with another provision of this Addendum, in which case the terms of this subsection and applicable Schedule will control. You authorize Bank to share information from your Customer Application with American Express, Discover Network, and any other Non-Bank Payment Network.
Settlement Terms.
1. Settlement Amounts. All settlements received from Card Transactions will be net of amounts:
  1. That Payment Networks are permitted to deduct pursuant to their respective Payment Network Rules, including without limitation, Chargebacks, Credits, interchange fees, other fees, fines and assessments arising from PF Supplier’s Customer’s Card Transactions,
  2. All Fees and other charges payable to Bank. All credits to the Customer are provisional and are subject to collection by Bank,
  3. Set off from settlement amounts due Customer of any amounts payable to Bank or any of its Affiliates pursuant to this Addendum, including withholding of amounts of any deficiencies in any Reserve Account with respect of this Addendum, and
  4. Set off from settlement amounts payable to Customer any amounts owed to Bank or any of its Affiliates not arising out of or related to this Addendum.
  5. Alternatively, Bank may elect, in its sole discretion, to invoice Customer for any of the amounts listed in this Section 6, which invoice shall be due and payable on the date of issuance.
  6. Customer will have no ownership, security interest or beneficial interest in any funds held by Bank in respect of Transactions whether or not attributable to Transactions submitted by or on behalf of Customer or payable to Customer pursuant to this Addendum, except pursuant to the deposit Agreement governing the Customer Settlement Account.
2. Delay in Settlement.
  1. Bank will not be liable for delays in providing Settlement to Customer. Without limitation of the foregoing, Bank may, in its sole discretion and without notice to Customer, delay Settlement when Bank determines that circumstances warrant delay or for regulatory reasons or when fraud or other malfeasance is suspected.
  2. NOTWITHSTANDING ANYTHING IN THIS ADDENDUM TO THE CONTRARY, BANK’S LIABILITY FOR ANY DELAY IN FUNDING TRANSACTIONS FOR ANY REASON, OTHER THAN FOR CUSTOMER’S FAILURE TO MEET THE REQUIREMENTS OF THIS ADDENDUM OR IF A PAYMENT NETWORK CAUSES A DELAY IN SETTLEMENT OR AS OTHERWISE PROVIDED HEREIN, FOR WHICH BANK SHALL BEAR NO LIABILITY, WILL BE LIMITED TO INTEREST COMPUTED FROM THE DATE WHEN SETTLEMENT WAS DUE ABSENT EXCUSED DELAYS TO THE DATE THAT THE TRANSACTION IS FUNDED AT THE RATE OF THE FEDERAL FUNDS AS SET BY THE FEDERAL RESERVE BANK OF NEW YORK, NEW YORK, FROM TIME TO TIME, LESS ONE PERCENT (1%), BUT NOT LESS THAN ZERO PERCENT (0%).
3. Settlement during Default. In addition to any other remedies available to JustiFi and Bank under this Addendum or the Agreement, Customer agrees that should any Default Event occur, JustiFi and Bank may, with or without notice, change processing or payment terms and/or suspend credits or other payments of any and all funds, money and amounts now due or hereafter to become due pursuant to the terms of this Addendum, until JustiFi and Bank have had reasonable opportunity to investigate such event, provided that such action shall not delay or waive JustiFi’s or Bank’s right to any other remedy available to it or to any of its or Affiliates or Bank under this Addendum, at law, or in equity.
4. IRS Reporting and Backup Withholding. Each year, a Form 1099-K, which reports to the IRS and certain state governments the Gross amount of the reportable payment Card Transactions that were processed during the tax year. To tile the Form 1099-K, the information provided by Customer regarding its taxpayer identification number (“TIN”) and related information must be accurate. JustiFi and Bank will be required to deduct and withhold income tax from funds if (i) a TIN is not provided; or (ii) the IRS notifies JustiFi or Bank that the TIN does not match the tax filing name provided. Accordingly, Customer agrees to provide to JustiFi the correct name and TIN used by Customer when filings its tax returns that includes the Card Transactions processed pursuant to this Addendum.
5. Collection of Amounts Owed. This Addendum is a contract whereby JustiFi is extending financial accommodations to Customer within the meaning of Section 365(c) of the U.S. Bankruptcy Code. Customer’s right to receive any amounts due or to become due from JustiFi or Bank is expressly subject and subordinate to Chargebacks, setoffs, liens, security interests and JustiFi’s or Bank’s rights to withhold Settlement Funds under this Addendum, without regard to whether such Chargebacks, setoffs, liens, security interests, and rights to withhold Settlement Funds are being applied to claims that are liquidated, unliquidated, fixed, contingent, matured, or unmatured.
Customer Reserve Accounts.
1. Reserve Account. If Bank, in its sole discretion requires, Bank will establish a Reserve Account to be held in and owned exclusively by Bank, subject to the following terms and a Reserve Account deposit agreement in a form provided by Bank. Bank, in its sole discretion, may access and apply funds held in the Reserve Account to satisfy any and all obligations of Customer under this Addendum, including such obligations of Customer and Customer’s payment facilitator or PF Suppliers under their respective agreements pertinent to Customer, under the Operating Regulations or Applicable Law. Such recourse to the Reserve Account shall not be Bank’s sole remedy to such obligations and Bank may exercise any remedies available to Bank in this Addendum or Applicable Law. Bank may exercise available remedies in the order and apply proceeds therefrom to the obligations as it determines in its sole discretion.
2. Funding. The Reserve Account may be funded by all or any combination of the following: (i) one or more debits to your Customer Settlement Account, wherever held, or any other accounts held by Bank or any of its Affiliates, at any financial institution maintained in the name of Customer, any of its principals, or any of its guarantors, or if any of same are authorized signers on such account; (ii) withholding any payments otherwise due to you, including any amount due arising from optional services provided by Bank or Processor; (iii) your delivery to Bank of a letter of credit; or (iv) if we so agree or require, your pledge to Bank of a freely transferable and negotiable certificate of deposit. Any such letter of credit or certificate of deposit shall be issued or established by Bank or a financial institution acceptable to Bank and shall be in a form satisfactory to Bank. In the event of termination of this Agreement by any Party, an immediate Reserve Account may be established without notice and funded in the manner provided above. Any Reserve Account will be held by Bank for the greater of one hundred eighty (180) days from the date of the last Card Transaction processed under the Agreement, plus the period allowed for or of any Chargeback, warranty, guarantee, and/or return policy on goods and/or services sold. We will hold funds in master account(s) which include funds due other Entities, with your funds allocated to a separate sub-account. Unless specifically required by Applicable Law, you shall not be entitled to interest on any funds held by Bank in a Reserve Account.
3. Insufficient Funds. If your funds in the Reserve Account are not sufficient to cover the Chargebacks, adjustments, fees and other charges and amounts due from you, or if the funds in the Reserve Account have been released, you agree to promptly pay Bank such sums upon request.
4. Right of Set-Off. For sake of clarification and notwithstanding anything in the Agreement to the contrary, if Bank deducts, holds back, suspends, recoups, offsets or sets off any Settlement monies or amounts otherwise due you pursuant to the terms of this Agreement (collectively “Set Off Funds”), you acknowledge that such Set Off Funds may be held in a commingled Reserve Account(s) of Bank.
Calculation of Fees.
1. Reimbursement of Fees. Fees include a portion based on the interchange reimbursement fee for which each Card Transaction qualifies under the applicable Payment Network Rules. If a Card Transaction fails to qualify for the anticipated interchange levels or if Customer inadvertently or intentionally accepts a Card Transaction other than the type anticipated for Customer (including a different Card type), then, as applicable to the pricing method, Customer will be charged a higher interchange, discount rate, or Non-Qualified Interchange Fee, as well as any applicable surcharge for that Card Transaction.
2. Anticipated Card Transaction Volumes. The fees for the Payment Processing Services set forth in the Order Form are based upon assumptions associated with the anticipated annual volume and average Card Transaction size for all Payment Processing Services as set forth in this Addendum and Customer’s methods of doing business. If the actual volume or average Card Transaction size are not as expected or if Customer alters its methods of doing business, JustiFi may adjust Customer’s discount fee and transaction fees without prior notice.
3. Commercial Card Interchange Service. Visa and MasterCard apply different interchange rates to commercial Card Transactions based on the level of transaction detail that Customer provides in its settlement files. Customer must include the sales tax amount for commercial Card Transactions to qualify for lower interchange rates and must meet the qualification requirements set forth by Visa and Mastercard, as may be updated. If Customer does not report the sales tax amount in a separate and distinct field in its settlement files, the Commercial Card Interchange Service (“CCIS”) will be used to calculate and transmit the sales tax amount for those commercial Card Transactions that will qualify for lower exchange rates. The fee portion of the qualifying interchange rate saved will show on Customer’s monthly statements as “Commercial Card IC Savings Adjustment.” Bank will enroll Customer for CCIS in accordance with Processor’s then-current set-up procedures.
Confidentiality and Privacy.
1. Cardholder Data. Customer shall not use, disclose, store, sell, or disseminate any Cardholder Data obtained in connection with a Card Transaction (including the names, addresses, and Card account numbers of Cardholders) except for purposes of authorizing, completing, and settling Card Transactions and resolving any Chargebacks, Retrieval Requests, or similar issues involving Card Transactions, other than pursuant to a court or governmental agency request, subpoena, or court order. Customer shall use proper controls for and limit access to, render unreadable prior to discarding, all records containing Cardholder account numbers and Card imprints. Customer shall not retain or store Magnetic Stripe Data or Card Validation Codes after a transaction has been authorized. If Customer stores any electronically captured signature or biometric authentication data of Cardholder, Customer may not reproduce such signature or biometric data except upon JustiFi’s or Bank’s specific request.
2. Card Transaction Ownership. Customer acknowledges that it will not obtain ownership rights in any information relating to and derived from Card Transactions. Cardholder Data, including account numbers, personal information, and other Card Transaction information, including any databases containing such information, may not be sold or disclosed to an Entity as an asset upon a bankruptcy, insolvency, or failure of Customer’s business. Upon a bankruptcy, insolvency, or failure of Customer’s business, all Card Transaction information and Cardholder Data must be returned to Bank or proof of the destruction of all Card Transaction information and Cardholder Data acceptable to Bank must be provided to Bank.
3. Use of Data. Customer acknowledges that breach of the restrictions on use or disclosure of any of JustiFi’s or its licensors’ confidential information would result in immediate and irreparable harm to JustiFi and its licensors, and money damages would be inadequate to compensate for that harm. JustiFi and its licensors shall be entitled to equitable relief, in addition to all other available remedies, to redress any breach.
4. JustiFi and Licensor Use of Data. JustiFi and its licensors may use Transaction Data that is collected in performing the Services for the purpose of providing additional products and services.
Transaction Processing Requirements.
1. Transaction Receipts. Customer shall not submit any Transaction that Customer knows or should know to be fraudulent or not authorized by the Cardholder, or that Customer knows or should know to have a fraudulent purpose.
2. Quasi Cash Transactions. Customer shall not accept Cards for Quasi-Cash Transactions or submit any Transactions that result in the disbursement of any time of cash or quasi cash to a Cardholder.
Audits and Inspections. Customer will provide to JustiFi, Bank or their designated representatives access to all books and records of Customer requested by JustiFi or Bank for the purpose of determining Customer’s compliance with its respective obligations pursuant to this Addendum. Customer will provide such access within three (3) Business Days after Banks’s notice of such request. Additionally, Customer will provide access and copying to books and records and to premises as may be requested by any Payment Network or governmental regulator with authority over JustiFi, Bank, Processor, or Customer. The rights of access to books and records and inspection of premises are in addition to any other rights to obtain information, to audit, and to inspect Customer’s books, records, and premises provided under this Addendum or under Applicable Laws and Operating Regulation. You agree that JustiFi and Bank may share information obtained with processors and JustiFi’s and Bank’s respective affiliates, Bank’s regulators and any other Person as required by Applicable Law or Operating Regulations.
Engagement of Suppliers. Customer may engage a PF Supplier to provide Merchant Point-of-Sale terminal services subject to the terms stated in the Data Security Requirements and the following:
1. Responsibility for Third Party Service Providers. Customer’s use of the services, equipment, software, systems, materials, supplies or resources of third parties regarding Customer’s Card Transactions processing, including, without limitation, PF Suppliers and any third-party lessors or licensors, will not affect your obligations under this Addendum to Bank, which will apply to the same extent as if you had not used them. Bank has no liability or responsibility to Customer or others regarding these third parties, even if Bank referred them to Customer. These third parties are Customer’s agents, and Customer is solely responsible for: (i) determining whether they can meet your needs and standards, (ii) their actions, inactions and compliance with the terms of this Addendum, the Operating Regulations and Applicable Law, and (iii) any and all fees, costs, expenses and other obligations owed to them by Customer or owed by them to Bank, Processor or Payment Networks. Bank reserves the right to disapprove any proposed third-party service providers. Any third-party service providers contracted by Customer must be registered with Payment Networks if required by Payment Network Rules. Customer must provide Bank with all information regarding Customer’s PF Suppliers and Customer consents and represents and warrants that Customer’s third-party service providers consent, to our providing any such information to Payment Networks as necessary to register Customer’s service provider or otherwise as a Payment Network may request. Customer may not use the services of a service provider until approved by Bank and registered with all applicable Payment Networks.
2. Third-Party Terminal Providers. Customer will immediately notify Bank if Customer decides to use electronic authorization or data capture terminals provided by any entity other than Processor or Bank’s authorized designee (“Third-Party Terminals”) to process transactions, including leasing a terminal from a third party. If Customer elects to use Third-Party Terminals, (i) the third party providing the terminals will be Customer’s agent in the delivery of Card Transactions to Bank; and (ii) Customer assumes full responsibility and liability for any failure of that third party to comply with the requirements of Bank, Processor, the operating Regulations, Applicable Law or this Addendum. Bank will not be responsible for any losses or additional fees incurred by Customer as a result of any error by a third-party agent or third-party service provider or a malfunction in a Third-Party Terminal. Customer is responsible to ensure that Third-Party Terminals meet Processor’s certification standards and are PA-DSS compliant.
3. Internet Connectivity Responsibility. The use of agents or third-party service providers or an agent’s or third-party service provider’s software application that has connectivity to the Internet poses an increased risk, and Customer assumes all liability for such increased risks. If Customer utilizes software or hardware with a connection to the Internet and such hardware or software interacts in any capacity with the provision of Services provided pursuant to this Addendum, Customer is solely liable without limitation for any and all consequences of such interaction.
Customer Data Security Requirements. THE FOLLOWING IS IMPORTANT INFORMATION REGARDING THE PROTECTION OF CARDHOLDER DATA. PLEASE REVIEW CAREFULLY AS FAILURE TO COMPLY CAN RESULT IN SUBSTANTIAL FINES, ASSESSMENTS AND LIABILITIES FOR UNAUTHORIZED DISCLOSURE OF CARDHOLDER DATA AND TERMINATION OF THIS ADDENDUM.
1. Applicability. Data security requirements apply to all of Customer’s systems and locations where Cardholder Data is collected, processed, transmitted or stored and includes all such functions performed by Customer and JustiFi and its licensors or any other vendor, supplier, agent or representative performing such functions or having access to Cardholder Data (other than Bank), including without limitation all Merchant Equipment, including: (i) all external connections into Customer’s network (i.e., employee remote access, third-party access for processing, and maintenance); (ii) all connections to and from the authorization and settlement environment (i.e., connections for employee access or for devices such as firewalls, and routers); and (iii) any data repository outside of the authorization and settlement environment. Customer shall not permit any PF Supplier provider to store Cardholder or Transaction Data outside the U.S. or allow access to such data to any Entity located outside the U.S., including employees, agents and affiliates of Customer, without the prior written consent of Bank.
2. Security Measures. At all times during the Term of this Agreement and thereafter for as long as Customer retains any Cardholder Data, Customer must: (i) continuously take all reasonable precautionary measures to safeguard Cardholder Data from unauthorized access, disclosure and use; (ii) comply with all data security requirements as prescribed by Operating Regulations and by Bank from time to time; and (iii) without limitation of the foregoing, at least comply with the following data security requirements:
  1. Install and maintain a secure network firewall to protect data across public networks;
  2. Comply with all requirements of the PCI-DSS applicable to Customer, including protecting stored data, data captured by, held in and transmitted from Card terminals and data sent across networks by using methods indicated in the PCI-DSS. See below, for full data security requirements and links to PCI and Payment Network data security rules;
  3. Use and regularly update anti-virus software and keep security patches up to date;
  4. Restrict access to data to only individuals who have a “need to know” such information to perform duties;
  5. Assign a unique ID to each individual with computer access to data and track access to data by unique ID, and promptly disable access to data for individuals who no longer should have access;
  6. Not use vendor-supplied defaults for system passwords and other security parameters;
  7. Regularly test security systems and processes;
  8. Maintain a policy that addresses information security for employees and contractors;
  9. Restrict physical access to Cardholder information;
  10. Not send Card account numbers to Cardholders for Internet and/or ecommerce transactions. Communications with Cardholders that include Card numbers may only show the last four digits of the Card number;
  11. Not store or retain Card Validation Codes (three-digit values printed in the signature panel of most Cards, and a four-digit code printed on the front of an American Express Card) after final transaction authorization;
  12. Not store or retain Magnetic Stripe Data, PIN data, Chip data or AVS data; only Cardholder account number, Cardholder name and Cardholder expiration data may be retained subsequent to transaction authorization;
  13. Destroy or purge all Media containing obsolete Cardholder Transaction Data;
  14. Keep all systems and Media containing Card account, Cardholder or transaction information (whether physical or electronic) in a secure manner so as to prevent access by, or disclosure to any unauthorized party;
  15. Use only services and Merchant Equipment that have been certified as PCI-DSS or PA-DSS compliant (as applicable) by the Payment Networks.
3. Payment Network Security Rules. In addition to compliant with PCI-DSS requirements, Customer must comply with data security requirements stated in the Payment Network Rules for each Card that Customer has elected to accept under this Addendum, or applicable under the Payment Network Rules that Customer accepts inadvertently or intentionally without having made such election. Customer must comply with changes and additions to the PCI-DSS and Operating Regulations as well as notifications from Bank regarding new data security requirements. The “Account Information Security Program (AISP)” is Visa’s data security program, the “Site Data Protection (SDP)” program is Mastercard’s data security program, “Discover Network Information Security and Compliance (DISC)” is Discover Network’s data security program, and the “Data Security Operating Policy (DSOP)” is American Express’ data security program, each of which includes the PCI-DSS and validation requirements and additional network specific requirements. Each Payment Network security program imposes associated fines and assessments for non-compliance, for which Customer will be responsible. Detailed information about security standards can be found at the following websites, or other websites designated by the Payment Networks from time to time:
  1. PCI-DSS: https://www.pcisecuritystandards.org
  2. Visa AISP: https://bm.visa.com/run-your-business/small-business/information-security/ais-program.html
  3. Mastercard/SDP: https://www.mastercard.com/sdp
  4. Discover Networks DISC: http://www.discovernetwork.com/merchants/data-security/disc.html
  5. American Express DSOP: https://www.americanexpress.com/datasecurity
4. Payment Networks have the right to enforce any provision of their respective Payment Network Rules and to prohibit Customer and/or JustiFi from engaging in any conduct that the Payment Network deems could injure or could create a risk of injury to the Payment Network including injury to reputation, or that could adversely affect the integrity of the Payment Network, the Payment Network’s confidential information as defined in the Payment Network Rules, or both; and Customer will not take any action that could interfere with or prevent the exercise of this right by the Payment Networks. Each Payment Network may use the information obtained in the Customer Application to screen, communicate with, and/or monitor Customer in connection with Card marketing and administrative purposes.
5. Non-Compliance. JustiFi, the Payment Networks and/or Bank may impose fines or penalties or restrict Customer from accepting Cards if it is determined that Customer is not compliant with the applicable data security requirements. JustiFi or Bank may in its respective sole discretion, suspend or terminate the Payment Processing Services under this Addendum for any actual or suspected Data Compromise Event . Customer agrees that it will not request any Authorizations, or submit any Sales Drafts or Credit Vouchers until it has read and understood the PCI-DSS, AISP, SDP, DISC, and DSOP, for which Customer acknowledges have provided to it sufficient information to obtain, and Customer will be deemed to have done so upon JustiFi’s receipt of Customer’s request or Submission of any Authorizations, Sales Drafts, or Credit Vouchers.
6. Audits and Reports. Customer must comply with all audits and reporting requirements of PCI-DSS that are applicable to it, including audits by Qualified Security Assessors or completion of Self-Assessment Questionnaires and provide its validation of compliance to JustiFi. Furthermore, JustiFi and the Bank retains the right to conduct an audit at Customer’s expense, performed by Bank or Entity designated by Bank to verify Customer’s compliance, or that of Customer’s agents or third-party service providers, with security procedures and the Operating Regulations. Customer shall provide for such audits by JustiFi or its designated auditors contractually with all of Customer’s third-party service providers that have access to Cardholder Data.
7. Notice of Data Compromise. In the event of any known or suspected Data Compromise Event, including any Data Compromise Event incurred by Customer’s PF Suppliers, Customer must contact Bank and JustiFi immediately, and in no event more than twenty-four (24) hours after becoming aware of such activity or suspected activity.
8. Investigation. Customer must, at its own expense: (i) perform or cause to be performed an independent investigation, including a forensics analysis performed by a certified forensic vendor acceptable to Bank and the Payment Networks in accordance with Payment Network standards, of any Data Compromise Event; (ii) provide a copy of the certified forensic vendor’s final report regarding the incident to Bank, JustiFi and the Payment Networks; (iii) perform or cause to be performed any remedial actions recommended by any such investigation; and (iv) cooperate with Bank in the investigation and resolution of any Data Compromise Event. Notwithstanding the foregoing, if required by a Payment Network, JustiFi or Bank will engage a forensic vendor approved by a Payment Network at Customer’s expense. Customer must, and Customer must cause its PF Suppliers to, cooperate with the forensic vendor so that it may immediately conduct an examination of Customer’s and its PF suppliers’ premises, equipment, systems and software, procedures and records reasonably related to a Data Compromise Event and issue a written report to JustiFi, Bank and Payment Networks of its findings.
9. Discover Card Notice Requirements. For any Data Compromise Event involving Discover Network transactions and/or track data, Customer must provide JustiFi and/or Discover Network with the following information: (i) the date of breach; (ii) details concerning the data compromised (e.g., account numbers and expiration dates, Cardholder names and addresses, etc.); (iii) the method of such breach; (iv) Customer’s security personnel contacts; (v) the name of any person (including law enforcement) assisting Customer with its investigation of such breach; and (vi) any other information which JustiFi reasonably requests from Customer concerning such Data Compromise Event, including forensics reports. Customer shall provide such information as soon as practicable, and the items listed in (i)–(vi) shall be provided to JustiFi and Bank in any event within forty-eight (48) hours of Customer’s initial notification to JustiFi and Bank of the Data Compromise Event.
10. PF Suppliers’ Compliance. Customer must ensure that the data security standards set forth in this SectiCustomer must ensure that the data security standards set forth in this Section 13 also apply to Customer’s PF Suppliers. Before Customer engages any third-party service providers, Customer must provide JustiFi and Bank in writing: (i) the third-party service provider’s legal name, (ii) contact information, and (iii) intended function. Customer must also provide to JustiFi and Bank ten (10) days’ prior written notice prior to making any changes with respect to any third-party service providers, including changing an existing third-party service provider’s function. Customer acknowledges and agrees that it will not use, or provide Cardholder Data access to, any third-party service providers until Customer receives JustiFi’s s approval and, if required, confirmation of JustiFi’s registration of that PF Supplier with applicable Payment Networks. Customer must ensure that it and its PF Supplier: (x) comply with the registration process which can involve site inspections, background investigations, provision of financial statements and any other information required by a Payment Network; (y) comply with the periodic and other reporting required by a Payment Network; and (z) comply with all applicable Operating Regulations and Applicable Law, including without limitation, those requiring security of Cardholder Data. Customer may allow PF Suppliers access to Cardholder Data only for purposes authorized under and in conformance with the Operating Regulations and Applicable Law. Customer is responsible for all JustiFi’s costs and expenses associated with JustiFi’s review, approval, certification (and recertification as may be required by Bank or the Operating Regulations) and registration of any third-party service providers. Bank’s Processor as of the Effective Date is compliant with PCI-DSS and will provide Customer a current SSAE 16 report indicating such compliant status upon Customer’s request.
11. Validation Fee. If JustiFi has not received receipt of Customer’s validation of compliance with Customer’s PCI-DSS standards within the first ninety (90) days of the date of this Addendum, Customer will be charged a monthly non-receipt of PCI validation fee as set forth in the Customer Application or as otherwise communicated to Customer, for the period beginning upon expiration of the 90-day period, until such time as Customer is compliant or this Agreement is terminated, whichever comes first. This monthly non-receipt of PCI validation fee is in addition to any and all other fees for which Customer is responsible related to Customer’s failure to comply with requirements hereunder, including without limitation thereof termination of this Agreement by JustiFi or Bank.
12. Data Compromise Losses. If Customer or any of Customer’s PF Suppliers (or other Entity used by Customer) is determined by any Payment Network, regardless of any forensic analysis or report, to be the likely source of any Data Compromise Event and regardless of Customer’s belief that it has complied with the Operating Regulations or any other security precautions and are not responsible for the Data Compromise Event, Customer must promptly pay any Data Compromise Losses arising from Customer’s operations or from operations of its PF Suppliers, without regard to any limitations of liability stated in the Agreement.
13. Telecom Data. Customer agrees that JustiFi may obtain relevant information from any telecommunications provider utilized by Customer as necessary to investigate any allegation of fraud or other actual or alleged wrongful act by Customer in connection with the Merchant Services..
Security Interest and Set Off Rights.
1. Security Interest. To secure Customer’s obligations to Bank and Bank’s respective Affiliates under this Addendum and any other agreement for the provision of equipment, products, or services (including any obligations for which payments on account of such obligations are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy act, state or federal law, common law or equitable cause), Customer grants to Bank a first priority lien and security interest in and to: (i) the Reserve Accounts; (ii) Customer’s Customer Settlement Account; (iii) any interest Customer may have in the funds held by Bank in its Custodial Account; (iv) any of Customer’s funds pertaining to the Card Transactions contemplated by this Addendum now or hereafter in JustiFi’s possession, whether now or hereafter due or to become due to Customer from Bank; and (v) any other deposit account of Customer with a financial institution, whether now existing or established in the future . If Bank permits Customer to hold its Customer Settlement Account in another financial institution, Customer must provide a Deposit Account Control Agreement signed by such financial institution in a form acceptable to Bank before Bank or JustiFi will transfer any Settlement Funds to the Customer Settlement Account. Such account must be held at a financial institution domiciled in the United States. Any such funds, money, or amounts now or hereafter in Bank’s possession may be commingled with other funds of Bank’s, or with any other funds of other customers or merchants of Bank’s. In addition to any rights now or hereafter granted under Applicable Law and not by way of limitation of any such rights, Bank is hereby authorized by Customer at any time and from time to time, without notice or demand to Customer or to any other Entity (any such notice and demand being hereby expressly waived), to set off, recoup, and to appropriate and to apply any and all such funds against and on account of Customer’s obligations to Bank and its respective Affiliates under this Agreement and any other agreement with Bank or JustiFi or their respective Affiliates for any related equipment or related services (including any check services), whether such obligations are liquidated, unliquidated, fixed, contingent, matured or unmatured. Customer agrees to duly execute and deliver to Bank such instruments and documents as Bank may reasonably request to perfect and confirm the lien, security interest, right of set off, recoupment and subordination set forth in this Agreement. If in replacement of or in addition to the first priority lien and security interest in the Reserve Account, Customer grants to Bank a first priority lien and security interest in and to one or more certificates of deposit, the certificates of deposit shall be uncertificated and shall be subject to a pledge agreement by, between and among Customer, Bank and the financial institution that has established and issued the certificate of deposit (if other than Bank). The form of the pledge agreement and the financial institution that will establish and issue the certificate of deposit shall be satisfactory and acceptable to Bank.
2. Right of Set Off. For clarity and notwithstanding anything in this Agreement to the contrary, if Bank deducts, holds back, suspends, recoups, offsets or sets off any settlement monies or amounts otherwise due Customer pursuant to the terms of this Agreement (collectively “Set Off Funds”), Customer acknowledges that such Set Off Funds may be applied to Customer’s obligations to Bank or held in a commingled Reserve Account(s) of Bank as determined by Bank in its sole discretion.
Cooperation with Enforcement Agencies. Customer must fully cooperate with law enforcement, the government, the Payment Networks, or other regulatory bodies in all reasonable investigations.
Chargebacks. Customer is responsible for all Chargebacks. Chargebacks must not be for excessive dollar amounts and transaction percentages. JustiFi may immediately terminate this Agreement if Customer has a Chargeback rate greater than 0.50% and 75 Chargebacks for three (3) consecutive months.
Indemnity. Customer is responsible for its own actions or inactions, those of its officers, directors, shareholders, employees, and agents, including any third-party service providers. Customer will defend, indemnify, and hold JustiFi and Bank harmless from any loss, claim, liability, or expense, including, without limitation, attorneys’ fees and costs, arising out of or in connection with Customer’s failure to observe or comply with the provisions of this Addendum, including any actions or inactions, those of its officers, directors, shareholders, employees, and agents, including any third-party service providers. This indemnity shall survive the expiration or termination of the term of the Agreement.
Ongoing Review.
1. Customer will make available for review by JustiFi and Bank, upon request by JustiFi or Bank, the following: (a) Significant Owners, (b) compliance with Applicable Laws (e.g., UDAAP, UDAP), and other consumer laws, if applicable), (c) physical site survey, (d) business documentation verification, (e) financial information, (f) business credit report, (g) tax returns, and (h) bank statements. Further, Customer agrees that JustiFi may conduct a physical site visit of Customer’s business location(s).
2. JustiFi and Bank may check Customer against any watch list promulgated by the U.S. Government, including OFAC’s Specially Designated Nationals and Blocked Persons List and the U.S. Department of State’s Terrorist Exclusion List (TEL), and will take any necessary action to comply with Applicable Laws, including but not limited to providing required notifications, blocking Transactions or freezing funds, and alerting Bank of any confirmed positive match.
Post Termination Rights and Obligations.
1. Bank’s Remedies. If any Default Event occurs, regardless of whether such Default Event has been cured, Bank and JustiFi may, in their respective sole discretion, exercise all of the rights and remedies under Applicable Law, and this Agreement.
2. Bankruptcy. If Customer files for protection under the U.S. Bankruptcy Code or any other laws relating to bankruptcy, insolvency, assignment for the benefit of creditors or similar laws, and continues to use the Services, it is Customer’s responsibility to open new accounts to distinguish pre and post filing obligations. Customer acknowledges that as long as Customer utilizes the accounts established prior to such filing, neither JustiFi nor Bank will be able to systematically segregate Customer’s post-filing transactions or prevent set-off of the pre-existing obligations. In that event, Customer will be responsible for submitting an accounting supporting any adjustments that Customer may claim.
3. Merchant Responsibilities. After termination of the Payment Processing Services and this Addendum for any reason whatsoever, Customer shall continue to bear total responsibility for all Chargebacks, fees, Payment Network fines or assessments imposed on Bank as a result of Customer’s acts or omissions, Credits and adjustments resulting from Card Transactions processed pursuant to this Addendum, Data Compromise Losses and all other amounts then due or which thereafter may become due to Bank or JustiFi with respect to this Addendum.
4. MATCH. Certain Payment Networks maintain merchant lists, such as the Member Alert to Control High-risk Merchants (“MATCH”), identifying merchants who have had their merchant agreements or Card acceptance rights terminated for cause. If this Addendum is terminated for cause, Customer acknowledges that Bank or JustiFi may be required to report Customer’s business name and the names and other information regarding its principals to the Payment Networks for inclusion on such list(s). Customer expressly agrees and consents to such reporting if Customer is terminated as a result of the occurrence of a Default Event or for any reason specified as cause by Visa, Mastercard, Discover Network or American Express. Furthermore, Customer agrees to waive and hold Bank harmless from and against any and all claims which Customer may have as a result of such reporting.
Miscellaneous.
1. Customer represents, warrants, and agrees that:
  1. Each Card Transaction is genuine and arises from a bona fide transaction permissible under the Payment Network Rules by the Cardholder directly with you, represents a valid obligation for the amount shown on the Sales Draft, preauthorized order or Credit Voucher, and does not involve the use of a Card for any other purpose;
  2. Each Card Transaction represents an obligation of the related Cardholder for the amount of the Card Transaction
  3. The amount charged for each Card Transaction is not subject to any dispute, setoff or counterclaim;
  4. Each Card Transaction amount is only for merchandise or services (including taxes, but without any surcharge) sold, leased or rented by you pursuant to your business as indicated on the Customer Application and, except for any delayed delivery or advance deposit Card Transactions expressly authorized by this Agreement, that merchandise or service was actually delivered to or performed for the Cardholder entering into that Card Transaction before or at the time when you submitted that Card Transaction for processing;
  5. With respect to each Card Transaction, you have no knowledge or notice of any fact, circumstance or defense which would indicate that such Card Transaction is fraudulent or not authorized by the related Cardholder or that would otherwise impair the validity or collectability of that Cardholder’s obligation arising from that Card Transaction or relieve that Cardholder from liability with respect thereto;
  6. You have not requested or required a Cardholder to waive a right to dispute a Transaction;
  7. Each Card Transaction is made in accordance with this Customer Agreement and the Operating Regulations;
  8. Each Sales Draft is free of any alteration not authorized by the related Cardholder;
  9. You have completed one Card Transaction per sale; or one Card Transaction per shipment of goods for which the Cardholder has agreed to partial shipments
  10. You are validly existing, in good standing and free to enter into this Agreement;
  11. Each statement made on the Customer Application or other information provided to Bank in support of your Customer Agreement is true, correct and complete;
  12. You are not doing business under a name or style not previously disclosed to Bank;
  13. You have not changed the nature of your business, Card acceptance practices, delivery methods, return policies or types of products or services sold requiring a different MCC under Payment Network Rules, in a way not previously disclosed to Bank;
  14. You will use the Services only for your own proper business purposes and will not resell, directly or indirectly, any part of the Services to any Entity;
  15. You have not submitted any Transactions that are illegal transactions or transactions that you should have known were illegal, for example, those prohibited by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq.;
  16. You have not submitted transactions to Bank that are Transactions between Cardholders and any other Entity, i.e., you have not engaged in Factoring or “laundering” of transactions;
  17. You have not filed a bankruptcy petition not previously disclosed to Bank;
  18. You own and control the Settlement Account, and no third-party security interest or lien of any type exists regarding the Settlement Account or any Card Transaction;
  19. You will not at any time during the term of this Agreement and thereafter until all amounts due under this Agreement have been paid in full and funds are released by Bank, grant or pledge any security interest or lien in the Reserve Account, Customer Settlement Account or Transaction proceeds to any Entity without the consent of Bank and PF; and
  20. Customer and each Principal of Customer is not a Prohibited Entity, will not become a Prohibited Entity at any time during the Term, and is not and will not become “otherwise associated with” a Prohibited Entity within the meaning of 31 C.F.R. 594.316. Merchant is not: (i) located in or operating under a license issued by a jurisdiction whose government has been identified by the U.S. Department of State as a sponsor of international terrorism under 22 U.S.C. 2371 or 50 U.S.C. App. 2405(j), (ii) located in or operating under a license issued by a jurisdiction that has been designated as non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization of which the U.S. is a member, or (iii) located in or operating under a license issued by a jurisdiction that has been designated by the U.S. Secretary of Treasury pursuant to 31 U.S.C. 5318A as warranting special measures due to money laundering concerns. “Principal” means any individual or other Entity owning directly, indirectly, beneficially or otherwise controlling at least 25% of the equity or voting power of Merchant.
2. Third-Party Beneficiary. Customer is not a third-party beneficiary to JustiFi’s agreement with Bank or Processor and Customer may not bring any claims related thereto against Bank or Processor.
3. Automatic Termination. JustiFi will automatically and immediately terminate this Addendum if any Payment Network de-registers JustiFi, if Bank ceases to be a member of any of the Payment Networks for any reason, if Bank no longer has a license to use a Payment Network’s marks, or if Bank otherwise requires JustiFi to terminate this Addendum.
4. Annual Volume over $1,000,000. In the event Customer’s process annual volume is over one million dollars ($1,000,000) in Visa Transactions or one million dollars ($1,000,000) in Mastercard Transactions, Bank and Processor will automatically be added as parties to this Addendum.
5. Assignment of Payments Due. Customer acknowledges and agrees it will not assign to any third party any payments due to it under this Addendum, and all indebtedness arising from Transactions will be for bona fide sales of goods and services (or both) and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Customer may sell and assign future American Express Transaction receivables to JustiFi, its affiliated entities and/or any other cash advance funding source that partners with JustiFi or its affiliated entities without consent of American Express.
6. Excessive Activity. If Customer experiences Excessive Activity in relation to Chargebacks and Retrieval Requests, in addition to Bank’s other remedies under this Addendum, Bank or JustiFi may do any one or more of the following: (i) review Customer’s internal procedures relating to acceptance of Cards and notify Customer of revised procedures that it should adopt that might reduce future disputes; (ii) notify Customer of a new rate that will be charged to process Customer’s disputes; (iii) require Customer to replace any magnetic-stripe-only point of sale terminal or electronic cash register with an EMV chip-capable terminal, if required under the Payment Network Rules; (iv) establish a Reserve Account or increase the amount of reserves required; or (v) terminate the Addendum. Customer understands that having Excessive Activity may result in assessments, fines, fees, and penalties by the Payment Networks. Customer agrees to reimburse Bank immediately for any such assessments, fines, fees, and penalties imposed on Bank and any related loss, cost, or expense incurred by Bank.
7. Customer Authentication Credentials. You are responsible for ensuring your account information is kept confidential. When a change to your Customer account is required, you will be required to present authentication prior to Bank’s or JustiFi’s acceptance of a requested change. Customer shall be fully liable for any changes to its account after proper authentication is presented. Bank may request from Customer additional information to further verify Customer’s identity and may delay a change pending completion of such verification.
8. End user Complaints. Customer agrees to promptly respond to any complaints from end users communicated to Customer, and to communicate such complaints and the information surrounding such complaints, to JustiFi.
9. Use of Data. Customer shall not sell (as that term is defined under Applicable Law) or disclose, use, or retain for any commercial purpose not expressly set forth in this Agreement or outside the business relationship between the parties, any Cardholder Data. Customer acknowledges that breach of the restrictions on use or disclosure of any confidential information would result in immediate and irreparable harm to Bank, and money damages would be inadequate to compensate for that harm. Bank and PF Suppliers shall be entitled to equitable relief, in addition to all other available remedies, to redress any breach.
10. Bank Use of Data. Bank and JustiFi may use Transaction Data that Bank and/or JustiFi collects in performing Services for you for the purpose of providing additional products and services to you, other merchants, or third parties. This includes collecting, using, and de-identifying Cardholder information, dates, amounts, and other Transaction Data to provide you with analytic products and services and using Transaction Data anonymized and aggregated with other merchants’ transaction data for internal purposes and to provide you, other merchants, and third parties with analytic products and services.
Definitions. As used in this Addendum, the following terms are defined as follows:
1. “3-D Secure” means a Visa-approved method for authentication of Electronic Commerce Transactions.
2. “Accepted Terms Sheet” means the Payment Facilitator Terms Sheet attached to and incorporated by reference to the Payment Facilitator Application submitted by JustiFi and accepted by Bank, as modified from time to time in accordance with this Agreement.
3. “Authentication Request” means a request for Cardholder authentication from a Customer utilizing 3-D Secure to a Card Issuer.
4. “Account Information Security Program” or “AISP” means Visa’s data security program as set forth at https://bm.visa.com/run-your-business/small-business/information-security/ais-program.htm.
5. “ACH” means Automated Clearing House.
6. “Affiliate” means another Entity that, directly or indirectly, (i) owns or controls such Entity or (ii) is under common ownership or Control with such Entity.
7. “Applicable Law” means all applicable federal, state and local laws, statutes, ordinances and regulations and procedures, and all applicable orders, judgments, decisions, guidance, recommendations, rules, policies or guidelines adopted or issued by any regulatory authority or any competent court, including but not limited to those of the Federal Trade Commission, the Consumer Financial Protection Bureau, and the board of Governors of the Federal Reserve System, as they may be amended from time to time.
8. “Application” means the Payment Facilitator Application submitted by JustiFi and accepted by Bank.
9. “Authorization” means approval by, or on behalf of, the Issuer to validate a transaction. An Authorization indicates only the availability of the Cardholder’s Credit Limit or funds at the time the Authorization is requested.
10. “AVS” means Address Verification Service.
11. “Bank” means Silicon Valley Bank, a California banking corporation.
12. “Bankruptcy Code” means Title 11 of the United States Code, as amended from time to time.
13. “Batch” means a single Submission to Bank of a group of transactions (sales and Credits) for settlement. A Batch usually represents a day’s worth of transactions.
14. “Beneficial Owner” means a person who has 25% or greater ownership of a legal entity.
15. “Blocked Person” means (i) an individual, group, or entity owned or controlled by, or acting on behalf of, a sanctioned country, or (ii) an individual, group, or entity, such as terrorist or narcotics trafficker, designated under programs that are not country-specific whose assets are blocked and with whom United States persons are generally prohibited from doing business.
16. “Business Day” means any day other than a Saturday, Sunday, or legal holiday on which the Federal Reserve Bank of San Francisco is open to the public for carrying on substantially all of its banking functions. Any other reference to “days” shall mean calendar days.
17. “Card” means a payment device issued to a Cardholder, including a plastic card or electronic representation thereof, bearing a Mark of a Payment Network, which enables the Cardholder to make payments for goods or services from Entities that accept such Cards, initiate transfers of funds or withdraw cash; for purposes of this Agreement, Cards are limited to Cards bearing the Marks of a Payment Network that is supported by Bank, made available to Customer by Bank and elected for acceptance by Customer. A Card may be a Credit Card or Debit Card, including prepaid cards.
18. “Cardholder” means the Entity to whom a Card has been issued and any authorized user of such Card, including the Entity that has entered into an agreement establishing a Card account with an Issuer.
19. “Cardholder Data” means Transaction Data, Card account number and other Card information, deposit account information, information concerning a natural person which because of name, number, personal mark, or other identifier, can be used to identify that natural person in combination with any one or more of the following data: (i) social security number; (ii) driver’s license number or non-driver identification card number; (iii) mother’s maiden name, financial services account number or code, savings account number or code, checking account number or code, debit card number or code, automated teller machine number or code, electronic serial number or personal identification number (PIN); or (iv) any information subject to Gramm-Leach-Bliley Act, Fair Credit Reporting Act, and Fair and Accurate Credit Transactions Act and all Applicable Laws affecting the subject matter and their respective regulations or guidelines.
20. “Card Not Present” or “CNP Sale/Transaction” means a transaction that occurs when the Card is not present at the point-of-sale, including Internet, mail-order, and telephone-order Card Transactions.
21. “Card Transaction” means the acceptance of a Card or information embossed or recorded on the Magnetic Stripe or Chip on the Card for payment for goods sold and/or leased or services provided to Cardholders by Customer and receipt of payment from Bank, whether the Transaction is approved, declined, or processed as a forced sale. The term “Transaction” also includes credits, errors, returns and adjustments.
22. “Card Validation Code” means a three-digit value printed in the signature panel of most Cards and a four-digit value printed on the front of an American Express Card. Visa’s Card Validation Code is known as CVV2; Mastercard’s Card Validation Code is known as CVC2; the Card Validation Codes for Discover Network and American Express are known as Card Identification Numbers (CID).
23. “Change of Control” means when Control of an Entity is transferred by any means to another Entity.
24. “Charge” or “Charges” means the total price, including all applicable taxes and gratuities, for the purchase of goods or services at a merchant for which a Cardholder has signed a Sales Draft or otherwise indicated intent to pay with a Card.
25. “Chargeback” means a Card Transaction (or disputed portion) that is returned to Bank by the Issuer pursuant to Payment Network Rules.
26. “Chip” means an integrated microchip embedded on a Card containing cardholder and account information.
27. “Clearing Record” means a record relating to a Card Transaction in the format necessary for Submission to a Payment Network for processing.
28. “Client Accounts” means all Custodial Accounts, JustiFi Accounts, Reserve Accounts and Customer Settlement Accounts maintained in connection with this Agreement.
29. “Communications” means payment orders (as defined by the California Uniform Commercial Code), instructions, requests, automated clearing house entries, and other communications that request a Service or payment processing.
30. “Confidential Information” means, notwithstanding anything to the contrary in this Addendum, each Party may have access to or receive disclosure of information relating to the other Party’s business, technology, marketing objectives and plans, or pricing and any other information, in any form, furnished or made available directly or indirectly by one Party to the other that is marked confidential, restricted or with a similar designation, or is otherwise reasonably understood to be considered confidential. Confidential Information does not include information that: (i) is or subsequently becomes publicly available (through no fault of the recipient); (ii) the recipient lawfully possesses before its disclosure; (iii) is independently developed without reliance on or use of the discloser’s Confidential Information; or (iv) is received from a third party that is not obligated to keep it confidential.
31. “Control” means, with respect to an Entity, to hold directly, indirectly or beneficially the majority voting power in the Entity or the legal power or authority, by contract or otherwise, to direct the affairs or disposition of the Entity or its assets; with respect to an asset, the right to direct the use and disposition of such asset.
32. “Controlling Person” means an individual with significant responsibility to control, manage, or direct a legal entity customer. For example, an executive officer or senior manager such as, a CEO, CFO, COO, General Partner, Managing Member, President, Vice President, or Treasurer or any individual who performs a similar function. This is a person with significant managerial control.
33. “Credit” means a refund or price adjustment given for a previous purchase transaction
34. “Credit Card” means a Card enabling the Cardholder to buy goods or services on credit pursuant to the Cardholder’s account agreement with the Card Issuer.
35. “Credit Limit” means the credit line set by the Issuer for the Cardholder’s Credit Card account.
36. “Credit Voucher” means a document evidencing the return of merchandise by a Cardholder to a Customer, or other refund or price adjustment made by the Customer to the Cardholder, whether electronic, paper or other form, all of which must conform to Payment Network Rules and Applicable Law.
37. “Custodial Account” means an account opened by Bank designated “for the benefit” of Customer to evidence a custodial relationship, for use as the clearing account.
38. “Customer Settlement Account” means a commercial depository account in a bank acceptable to Bank, established by a Customer such that Bank may debit and credit amounts for payments to the Customer and from the Customer to Bank.
39. “Data Compromise Event” means any incident that exposes or reasonably should be suspected of having exposed Cardholder Data in an Entity’s possession or under its control, including Cardholder Data in the possession or under the control of an Entity’s third-party service providers, to unauthorized access, use or misappropriation.
40. “Data Compromise Losses”means all expenses, claims, assessments, fines, losses, costs, assessments and penalties and Issuer reimbursements imposed by the Payment Networks against Bank related to or arising from a Data Compromise Event and all expenses and claims made by Issuers or third parties against Bank arising from a Data Compromise Event apart from any claim procedures administered by the Payment Networks.
41. “Data Security Operating Policy (DSOP)” means American Express’ data security program as further described herein.
42. “Debit Card” means a Card that accesses the Cardholder’s deposit or savings account or is a Prepaid Card. A Debit Card may be either a PIN Debit Card or a Non-PIN Debit Card.
43. “Default Event” means a material breach of this Addendum by Customer; fraud, misrepresentation, or intentional misconduct related to Customer’s performance under this Addendum; excessive Chargebacks, irregular, or fraudulent payment transactions (based on Payment Network thresholds), or Customer engages in business practices creating excessive risk for Cardholders or Bank; a material adverse change to Customer’s financial condition (including the failure to pay any of its debts); failure by Customer to provide notice of a material change in the nature of its business; failure by Customer to disclose the third parties or systems it uses in connection with the transaction information or payment data processed under this Addendum; failure by Customer to fund the Reserve Account when required under this Addendum; Customer experiences a data compromise event or fails to comply with PCI-DSS or a material Payment Network requirements; Customer materially changes its operations, products, services, or procedures for Card acceptance; Customer fails to satisfy a review or audit conducted under this Addendum; Customer sells substantially all of its assets, undergoes a Change of Control, merges, or effects anmountent without obtaining the prior consent of Bank; or a Payment Network or a governmental authority instructs Bank to limit, suspend its performance under, or terminate this Addendum.
44. “Discover Network Information Security and Compliance (DISC)” means Discover Network’s data security program.
45. “Electronic Commerce Transaction” means a Card Transaction conducted over the Internet or other electronic network.
46. “EMV” means the global standard for chip-based payments.
47. “Entity” means an individual, corporation, partnership, sole proprietorship, trust, association, or any other legally recognized entity or organization.
48. “Excessive Activity” means the occurrence, during any monthly period, of Chargebacks or Retrieval Requests in excess of 0.50% of the number of Chargebacks compared to the number of Transactions.
49. “Factoring” means the Submission of authorization requests and/or Sales Drafts by a merchant for Card sales or cash advances transacted by another business, a practice also referred to as “laundering” sales drafts. Factoring is prohibited.
50. “Fees” means the various fees and charges listed on the Accepted Term Sheet.
51. “Gross” when referred to in connection with transaction amounts or fees, refers to the total amount of Card sales, without set-off for any refunds or Credits.
52. “High CV Payment Aggregator”means a payment aggregator with either (i) greater than USD $250,000,000 in American Express Transactions from its Merchants in a rolling twelve (12) month period or (ii) greater than USD $25,000,000 in American Express transactions from its Merchants in any three (3) consecutive months, wherein payment aggregator refers to JustiFi and Merchants refers to Customer under this Agreement.
53. “High CV Customer” means a Merchant with either (i) greater than USD $1,000,000 in American Express Transactions in a rolling twelve (12) month period or (ii) greater than USD $100,000 in American Express transactions in any three (3) consecutive months.
54. “ICA” means a numerical code assigned by Payment Networks to identify Payment Network participants for routing of transactions and allocation of responsibility for Transactions.
55. “Issuer” means the financial institution that has issued a Card to a Cardholder.
56. “Magnetic Stripe” means a stripe of magnetic information affixed to the back of a plastic Card. The Magnetic Stripe contains essential Cardholder and account information.
57. “Magnetic Stripe Data” means information required or permitted by Payment Network Rules to be encoded on a Magnetic Stripe or Chip or replicated in a virtual, electronic or other form of a Card.
58. “Marks” means names, logos, emblems, brands, service marks, trademarks, trade names, tag lines or other proprietary designations.
59. “Media” means the documentation in whatever form, physical or electronic, of monetary transactions (i.e., Sales Drafts, Credit Vouchers, computer printouts, etc.).
60. “Merchant” see Customer.
61. “Merchant Equipment” means any and all equipment a Customer uses in connection with Card authorization, clearing, completing, settling, transmitting or other related processing, including, without limitation, all telecommunication lines and wireless connections and software, systems, point-of-sale terminals, card readers, merchandise and card scanners, printers, PIN pad devices and other hardware, whether owned by JustiFi, the Customer, PF Suppliers or other Entities.
62. “Non-Bank Cards” means Cards other than Cards bearing the Marks of Visa or Mastercard.
63. “Non-PIN Debit Card” means a Debit Card that does not require a PIN for Cardholder authentication.
64. “Non-Qualified Transactions” means any Card Transaction (i) submitted for processing more than 48 hours past the time the Authorization occurred; (ii) missing required data; and (iii) designated as such by the organization designated by Bank to settle Card Transactions with the Payment Networks.
65. “OFAC” means the Office of Foreign Assets Control of the U.S. Treasury.
66. “Operating Regulations” means all operating regulation, and/or all other rules, guidelines, policies and procedures of VISA, Mastercard, Discover, American Express and/or Other Networks, and all other applicable rules, regulations and requirements of Bank and Processor applicable to similarly situated Payment Facilitators, Bank, other banks, institutions, organizations, associations, or networks which govern or affect any services provided under this Addendum, including, but not limited to, the Payment Network Rules and those of the National Automated Clearing House Association (“Nacha”), as any or all of the foregoing may be amended and in effect from time to time.
67. “OptBlue® Program®” means a program pursuant to which Bank and Processor provide Card acceptance services with respect to American Express Cards.
68. “Other Networks” means Payment Networks other than American Express, Discover, Mastercard and Visa for which card acceptance Services are provided by Bank or Processor under this Addendum.
69. “PA-DSS” means the Payment Application Data Security Standard as promulgated and revised from time to time by the PCI Security Standards Council, LLC, available at:https://www.pcisecuritystandards.org/.
70. “PF Supplier” means any third party other than Processor used by JustiFi or a Customer in connection with the Services received hereunder, including but not limited to JustiFi’s software providers, equipment providers, and/or third-party processors.
71. “Payment Network” means any Entity formed to administer and promote Cards, including without limitation Mastercard Worldwide (“Mastercard”), Visa, Inc. (“Visa”), DFS Services LLC (“Discover Network”), American Express PF, Inc. (“American Express”) and any applicable PIN Debit Card networks.
72. “Payment Network Marks” means Marks indicating acceptance of Cards as permitted by Payment Network Rules.
73. “Payment Network Rules” means the rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Payment Network and related authorities, including without limitation, those of the PCI Security Standards Council, LLC, the National Automated Clearing House Association and the Quest Operating Rules.
74. “PCI-DSS” means the Payment Card Industry Data Security Standards and Best Practices as promulgated and revised from time to time by the PCI Security Standards Council, LLC, available at:https://www.pcisecuritystandards.org/.
75. “PIN” means a Personal Identification Number entered by the Cardholder to submit a PIN Debit Card transaction.
76. “PIN Debit Card” means a Debit Card that requires transactions to be authenticated by the Cardholder’s entry of a PIN.
77. “Point of Sale (POS) Terminal” means a device placed in a Merchant location which is connected to the Processor’s system via telephone lines or Internet connection and is designed to authorize, record and transmit settlement data by electronic means for all sales transactions with Processor.
78. “Prepaid Card” means a Card that accesses the Cardholder’s funds in an account held by the Issuer into which funds have previously been paid, by the Cardholder or by another Entity.
79. “Principal” means any individual or other Entity owning directly, indirectly, beneficially or otherwise controlling at least 25% of the equity or voting power of JustiFi or of a Customer.
80. “Principal Place of Business” means the fixed location at which JustiFi’s or a Customer’s (as applicable) executive officers direct, control, and coordinate the Entity’s activities, regardless of its web site or server locations.
81. “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure, transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
82. “Processing Fees” means the fees and charges set forth on the Accepted Terms Sheet, and any separate schedule of fees as may be amended and supplemented by Bank from time to time.
83. “Processor” means the Entity (other than the Bank) which provides certain services under the Agreement as a subcontractor of Bank. Processor may be changed by Bank.
84. “Optional Services” means certain Services or products that JustiFi or a Customer selects that are provided solely by Processor or by a third-party processor or provider (and not by Bank), as indicated in the Agreement.
85. “Prohibited Entity” means an Entity either listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC, or otherwise with whom a Party or is prohibited by laws, regulations or executive orders administered by OFAC, including Executive Order No. 13224, from conducting transactions and/or dealings.
86. “Qualified Security Assessor (QSA)” means a third-party service provider that meets the qualifications established by the Payment Card Industry Security Council for assessing a PF’s or merchant’s compliance with PCI-DSS and PA-DSS standards.
87. “Qualified Transactions” means (i) Card Transactions in which the Card is swiped or chip is read; (ii) Visa telephone or mail Transactions with Address Verification and order number entered; or (iii) Card Transactions that are part of a special registered program approved by the Payment Networks.
88. “Quasi-Cash Transaction” means a transaction representing a sale of items that are directly convertible to cash, including: (i) gaming chips; (ii) money orders; (iii) deposits; (iv) wire transfers; (v) travelers checks; (vi) prepaid cards or reloads thereof; (vii) foreign currency; or digital (crypto) currency.
89. “Reserve Account” means an account established and funded at Bank’s request or on your behalf, pursuant to this Addendum.
90. “Retrieval Request/Transaction Documentation Request” means a request for documentation related to a Card Transaction such as a copy of a Sales Draft or other Transaction source documents.
91. “Sales Draft” means evidence of a purchase, rental or lease of goods or services by a Cardholder from, and other payments to, Customer using a Card, including preauthorized orders and recurring transactions (unless the context requires otherwise); regardless of whether the form of such evidence is in paper or electronic form or otherwise, all of which must conform to Payment Network Rules and Applicable Law.
92. “Schedules” means the attachments, addenda and other documents, including revisions thereto, which may be incorporated into and made part of this Addendum concurrently with or after the date of this Addendum.
93. “Security Programs” means the data security requirements stated in the Payment Network Rules, including (1) the “Account Information Security Program (AISP)” – Visa’s data security program, (2) the “Site Data Protection (SDP)” – Mastercard’s data security program, (3) “Discover Network Information Security and Compliance (DISC)” – Discover Network’s data security program and (4) the “Data Security Operating Policy (DSOP)” -American Express’ data security program, each of which includes the PCI-DSS and validation requirements and additional network specific requirements.
94. “Security Procedures” means the credentials, security codes, keys, personal identification numbers, template numbers, algorithms, procedures or other programs or keystrokes that are adopted for use to verify the authenticity of communications from JustiFi (to prevent unauthorized access to the services and related platforms). For example, a Security Procedure may be the combination of a password with specific user identification or other credential.
95. “Self-Assessment Questionnaire (SAQ)”means a form of questionnaire prescribed by the Payment Card Industry Security Council for assessing a merchant’s compliance with PCI-DSS and PA-DSS standards to be completed by a Merchant and certified by a senior officer.
96. “Services” means the services and products described herein and selected by JustiFi and a Customer with respect to Card Transactions in the United States, including Optional Services.
97. “Settlement Funds” means the funds relating to Card Transactions processed by Bank or Processor that are settled to Customer.
98. “Significant Owner” means a (i) Beneficial Owner and a (ii) Controlling Person.
99. “Site Data Protection (SDP)” means Mastercard’s datasecurity program as set forth athttps://www.mastercard.com/sdp.
100. “Submission” means the process of sending Batch deposits to Processor for processing.
101. “Transaction” has the meaning provided in the definition of Card Transaction.
102. “Transaction Data” means data collected as part of performing payment processing or other Card Transaction-related Merchant Services.
103. “Transaction Receipt” means the paper or electronic record evidencing the purchase of goods or services by a Cardholder using a Card or Non-Bank Card.
104. “Us,” “We,” and “Our” means the Bank.

Attachment 1 to Payment Processing Services Addendum

ACH Origination Terms

ACH Terms of Use. The following terms of use will govern the ACH origination services (“ACH Services”). Capitalized terms used herein without definition shall have the meanings provided in the Nacha Rules and the Agreement.
Software Applications. All internet websites or applications that may be used to send and receive information and instructions or otherwise access the ACH Services are referred to as the “Online Banking Channels.” The Online Banking Channels and the software, specifications, tapes, or other media, programs, procedures, and equipment (collectively the “Software”) used in connection with the ACH Services are and will remain the sole property of Bank and Bank’s third-party service provider and will not be modified or altered in any way or used for any other purpose. Customer agrees to comply with the terms of any license made available to Customer through the ACH Services. Customer shall not (a) sell, assign transfer, license, or publish the Software or make copies of the Software; (b) disclose, display or otherwise make available the Software or copies of the Software to third parties without Bank’s written approval; or (c) reuse, reverse engineer, decompile, disassemble, modify, translate, create derivative works, reproduce, duplicate, or distribute the Software or content of the ACH Services, or make any attempt to discover any source code of any Software from which the ACH Services is comprised.
Submitting Entry Data. Customer’s data, records, and Instructions that are delivered in an ACH file or as part of ACH Entries (“Entry Data”) must be in the form, have the content, and be delivered in conforming with Nacha Rules and any Entry Data requirements specified by JustiFi from time to time. In the event of any conflict between JustiFi’s Entry Data requirements and the Nacha Rules, JustiFi’s Entry Data requirements will govern. Customer will deliver Entry Data in compliance with the Security Procedures. The total dollar amount of Entries transmitted by Customer will not exceed the Transaction limit(s) established by Bank or JustiFi from time to time.
Security Procedures.
1. Agreement to Use Commercially Reasonable Security Procedures. JustiFi offers Security Procedures that apply to the ACH Services and payment orders, and Customer’s use of the ACH Services constitutes Customer’s acceptance of those Security Procedures as commercially reasonable for the type, size, frequency, and volume of Customer’s payment orders and as a means of authenticating a Payment Order communicated to JustiFi or Bank. Customer acknowledges that the Security Procedures are used to verify the authenticity of, and not to detect errors in, any Payment Order. Any Payment Order communicated by Customer shall be effective as the funds transfer instruction or Payment Order of Customer, and shall be enforceable against Customer, whether or not authorized and regardless of the actual identity of the sender thereof, if such Payment Order is received in accordance with the applicable Security Procedures, and if such Payment Order is accepted in good faith. In addition, if any Payment Order was actually communicated or authorized by Customer or Customer otherwise benefited from such Payment Order (or resulting Entry), then Customer will be obligated to pay JustiFi the amount of the related Entry without regard to whether JustiFi or Bank complied with the Security Procedures. JustiFi and its licensors may, in their discretion, use additional procedures to verify the authenticity of any Payment Order. Customer agrees to implement any other reasonable authentication or Security Procedures established by JustiFi.
2. Compliance with Security Procedures. If Customer communicates any Payment Order (including any cancellation or amendment thereof) in a manner that varies from the Security Procedures, and if such Payment Order is accepted in good faith, then Customer agrees to be bound by such Payment Order, whether or not authorized, and Customer will be deemed to have refused the Security Procedures that JustiFi offers and recommends as commercially reasonable, and Customer will be obligated to pay JustiFi the amount of such Entry. However, Bank does have an obligation to accept any Payment Order that is not communicated in compliance with the Security Procedures. Neither JustiFi or Bank shall be responsible for refusal to act upon any Payment Order received which does not comply with this Attachment, including where JustiFi’s or Bank’s reasonable efforts to verify the Payment Order in accordance with the Security Procedures have failed or where such action is delayed until verification can be obtained.
Processing and Settlement of ACH Entries. Customer will comply with and be subject to the Nacha Rules with respect to all Entries whether or not a particular Entry is distributed through the ACH network , except as otherwise expressly agreed to by JustiFi. Unless the context otherwise requires, the Nacha Rules will apply only to “On-Us Entries,” which are Entries where the Receiver’s account also resides at the Originating Depository Financial Institution (“ODFI”). Bank will act as an ODFI with respect to Entries.
1. Standard Entry Class Codes. Standard Entry Class Codes (“SEC Codes”) are specified in Appendix Two (ACH Record Format Specifications) of the Nacha Rules. Customer may not originate Entries using SEC Codes that have not been included in the enrollment forms and approved by JustiFi. For example, SEC Codes PPD, CCD, and CTX are allowed without the need for additional documentation, but TEL, WEB, or IAT require prior approval by Bank and JustiFi’s agreement to Additional Documentation. JustiFi may block unapproved use of a SEC Code.
2. Stale Dated Payments. A stale dated payment will be processed on the next possible effective date, even if it forces that Entry to be handled as a same-day item.
3. File Rejection. An entire ACH file may be rejected if JustiFi or Bank have any question about its authenticity or any problems processing the file as submitted (for example, if there are insufficient funds in an account to cover processing all Entries in the file).
4. Customer as Originator.
  1. Customer assumes the responsibilities of an Originator under the Rules. If Originator fails to perform its obligations as an Originator under the Nacha Rules, Customer will indemnify JustiFi from and against any and all any and all proceedings, claims, demands, causes of action, damages, fines, expenses (including reasonable attorneys’ fees and other legal expenses), liabilities, harm, or other losses that result directly or indirectly from the Originator’s failure to perform its obligations. Nothing in this subsection limits Customer’s indemnification or other obligations under this Attachment or the Nacha Rules.
  2. Customer authorizes JustiFi to originate Entries on behalf of Customer to Receivers’ accounts.
  3. JustiFi may restrict Entries by impermissible SEC Codes or otherwise restrict Entries as set forth in this Attachment and the Agreement.
  4. Customer agrees that it will not originate Entries that violate the laws of the United States (including the sanctions laws administered by the Office of Foreign Assets Control).
  5. Customer authorizes JustiFi and its licensors to audit Customer’s compliance with this Attachment, the Agreement and the Nacha Rules.
  6. Customer agrees that JustiFi shall be permitted to terminate or suspend this Attachment and/or the Agreement for breach of the Nacha Rules or as required for JustiFi to comply with the Nacha Rules.
5. Provisional Settlement. Customer agrees that any payment to Customer for any originated Debit Entry (as described in the Nacha Rules), returned Credit Entry (as described in the Nacha Rules), or Credit Reversal (as described in the Nacha Rules) is provisional until Bank has received final settlement for such Entry. Bank and JustiFi may delay availability of provisional funds at Bank’s and JustiFi’s discretion. If final settlement is not received, Customer agrees to pay a refund of the amount credited and JustiFi or Bank may charge the Custodial Account and/or Reserve Account for the amount due. The Bank or JustiFi may refuse to permit the use of any amount credited for a Debit Entry or Credit Reversal if it is believed that there may not be sufficient funds in the Custodial Account or Reserve Account to cover chargeback or return of such Entry or Reversal.
6. Rejection of Entries. Any Entry and/or Entry Data may be rejected at any time, either with or without cause, including nonpayment or if Bank or JustiFi has attempted but is unable to verify the authenticity of the Entry Data. Individual entries or complete files may be rejected. JustiFi will endeavor to notify Customer of rejection no later than the second Business Day after the Entry would otherwise have been transmitted to the ACH Operator (or, in the case of an On-Bank Entry, after the Effective Entry Date). JustiFi will have no liability to Customer by reason of the rejection of any Entry or file or any failure or delay in providing such notice.
7. Cancellations, Amendment, or Reversal. Customer has no right to cancel or amend an Entry after Bank has received it. Bank may use commercially reasonable efforts to act on a request for cancellation of an Entry prior to transmitting it to the ACH Operator (or, in the case of an On-Us Entry, prior to crediting a Receiver’s account). JustiFi may deliver Entry Data for reversing entries (“Reversals”) pursuant to the Nacha Rules, but Bank will not process any Reversal that does not comply with the Nacha Rules or would violate this Attachment or the Agreement. Neither JustiFi nor Bank will have any liability if any requested cancellations or Reversals are not affected.
8. Returned Entries. JustiFi will notify Customer of the receipt of a returned Entry from the ACH Operator no later than one Business Day after the settlement day of such receipt. Customer has no right to request JustiFi to dishonor any returned Entry unless Customer gives JustiFi such request in writing, together with any relevant information required under the Nacha Rules, and JustiFi receives the written request and information before 10:00 a.m. PST of the fifth Business Day following the settlement date of the returned Entry Notice by JustiFi of a returned Entry shall be effective when given.
Notification of Changes. JustiFi will notify Customer of all notifications of changes (“NOCs”) received by JustiFi or corrected NOCs created by Bank related to Entries transmitted by Customer to JustiFi. JustiFi will do so no longer than two (2) Business Days after JustiFi’s receipt of the NOC. Customer must make the changes specified in any NOC or corrected NOC: (a) within six (6) Business Days of receipt or prior to initiating another Entry to the Receiver’s account, whichever is later; or (b) as otherwise required in the Nacha Rules, if the Nacha Rules specify a different time for correction.
Payment for Entries. Customer agrees to pay JustiFi, in immediately available funds, an amount equal to the shortfall in the net amount of funds available from Card Transactions submitted pursuant to this Agreement compared to sum of all Credit Entries or Debit Reversals related to Entry Data delivered, at such time as JustiFi may from time to time designate.
1. Time for Funding. Funds are due no later than the date of transmittal of the related Entry Data or at such other time as JustiFi may have established. Funds will be deemed to be provided if the funds in the Custodial Account and the Reserve Account are sufficient to fund Entries on the date and at the time when funds are due, provided that sufficiency of funds available will be determined by JustiFi and Bank in their sole discretion taking into account contingent needs for funds posted to such Accounts.
2. Funding Prior to Payments. JustiFi is not obligated to continue to process Entries without having first been paid by Customer, and JustiFi is not required to give notice that JustiFi will no longer continue such action, regardless of whether JustiFi may have done so previously. Bank or JustiFi may use the Custodial Account and the Reserve Account for debiting or crediting with respect to all Entries (and any Checks in lieu of Entries) and related adjustments and charges, but JustiFi is authorized to charge any Account or withhold funds that would otherwise be due to JustiFi pursuant to this Agreement if the designated Account has insufficient funds to cover any amounts due to JustiFi by Customer in connection with the ACH Services.
3. Holds. JustiFi and/or Bank may place a hold on funds in a Client Account without prior notice or demand in an amount reasonably believed by JustiFi and/or Bank to be needed to cover possible Returns or other amounts JustiFi and/or Bank reasonably believes are due or with the passage of time may become due under this Agreement in connection with the ACH Services. If there are not sufficient available funds in the Client Account to cover obligations in connection with the ACH Services, Customer agrees that the Entries may still be processed and debit any Client Account even if the result is to create an overdraft. Customer agrees to immediately provide cover for any negative balance or overdraft in a Client Account. JustiFi and/or Bank may also set off against any amounts JustiFi or Bank owes to Customer in order to obtain payment of obligations under this Agreement in connection with the ACH Services.
4. Reserve Amounts and Holdback. JustiFi and Bank may from time to time establish minimum amounts to be funded by Customer as reserve amounts in accordance with the Addendum. JustiFi and/or Bank may withhold and use any amounts due to Customer to maintain any initial or later required reserve amounts.
Compliance with Laws. Customer agrees, when requested by JustiFi, to assist with obtaining from the Receiver an authorization to initiate Entries to a Receiver’s account that complies with Applicable Law. The Receiver’s account shall be a commercial account, which is not used for personal, family, or household purposes.
Compliance with Nacha Rules. Customer will be bound by and comply with the Nacha Rules as in effect from time to time. At any time upon request by JustiFi, Customer will provide JustiFi with evidence and information regarding Receiver authorizations. Customer acknowledges that it is responsible for providing JustiFi with all information required by the RDFI, including the reason for payment, if required. Customer further acknowledges the Receiver account number and RDFI bank identification number that Customer provides in connection with an Entry must be complete and accurate, and Customer understands that the Entry and any transfer amount could be lost if the information is incorrect. Without limitation of the foregoing, Customer acknowledges that pursuant to Nacha Rules, the RDFI’s payment of an Entry to the Receiver is provisional until receipt by the RDFI of final settlement for such Entry; Customer specifically acknowledges that if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver account credited and Receiver will not be deemed paid by JustiFi or Bank.
Customer’s Representations, Warranties, and Covenants. Customer represents, warrants, and agrees that:
1. Each person shown as the Receiver on an Entry received by JustiFi has authorized the initiation of such Entry and the crediting or debiting of the Receiver’s account in the amount and on the Effective Entry Date shown on such Entry;
2. Such authorization is operative at the time of transmittal and at the time of debiting or crediting the Receiver’s account;
3. Entries transmitted to JustiFi are limited to the types of Entries that are allowed for Customer under this Agreement;
4. All Entries transmitted by Customer are in compliance with Applicable Law;
Inconsistency of Name and Account Number or RDFI Description. Customer acknowledges and agrees that if an Entry describes the Receiver inconsistently by name and account number, payment of the Entry transmitted to the RDFI might be made by the RDFI (or by Bank, in the case of an On-Bank Entry) on the basis of the account number even if it identifies a person different from the named Receiver. If an Entry describes a financial institution inconsistently by name and account number, the identification number may be relied upon as the proper identification of the financial institution. Customer’s obligation to pay the amount of the Entry is not excused in such circumstances.
Data Retention. Customer will retain data adequate to permit remaking of all Entries for ten (10) Business Days following the date of their transmittal and will provide that data to JustiFi upon request. Without limiting the generality of the foregoing, Customer specifically agrees to be bound by and comply with all applicable provisions of the Nacha Rules regarding the retention of any document or any record, including without limitation, Customer’s responsibilities to retain all items, source documents, and records of authorization in accordance with the Nacha Rules.
Customer Notification Obligations. Without limiting any other provision of this Attachment, Customer will notify JustiFi immediately if Customer discovers: (a) any error or discrepancy between Customer’s records and the information JustiFi or Bank provides to Customer about Customer’s transactions; (b) unauthorized transactions involving any Customer Account; (c) a breach in the confidentiality of Customer’s access credentials or other Security Procedures; or (d) material problems related to the security or integrity of the ACH Services. Customer must send JustiFi a written notice of any discrepancy or other problem, including a statement of the relevant facts, within a reasonable time (not to exceed two (2) Business Days from the date Customer first discovers the problem or receives information reflecting the problem, whichever occurs first). If Customer fails to notify JustiFi within two (2) Business Days, Customer agrees that, in addition to any other limitations on JustiFi’s liability: (y) in the case of an erroneous funds transfer, Customer will be liable for all losses up to the amount thereof (as well as any loss of interest) which result from Customer’s failure to give JustiFi such notice or which might have been prevented by Customer giving JustiFi such notice; and (z) in the case of an unauthorized funds transfer, JustiFi will not be liable for any loss of interest which results from Customer’s failure to give JustiFi such notice or which might have been prevented by Customer giving JustiFi such notice.

Schedule A to Payment Processing Services Addendum

American Express OptBlue® Program

This Schedule A governs your participation in the OptBlue® Program, in which you may choose to participate in order to accept American Express® Cards if you meet certain eligibility requirements. If you elect to enroll in the American Express OptBlue Program (“OptBlue Program”), the following additional terms and conditions of this Schedule A shall apply.

The OptBlue Program is provided to you by Processor and not Bank. The OptBlue Program and other matters contemplated under this Schedule A are subject to the terms and conditions of the Agreement, as applicable, except to the extent the terms of this Schedule A directly conflict with another provision of the Agreement, in which case the terms of this Schedule A will control. Capitalized terms used in this Schedule A shall have the meaning as defined in this Schedule A. Capitalized terms used in this Schedule A and not otherwise defined herein shall have the same meaning set forth in the Agreement.

You understand that you must meet certain eligibility requirements in order to participate in the OptBlue Program, including that you must be located in the fifty United States and have an estimated American Express charge volume of less than $1M per year. You further understand that if you currently or at any point in the future do not meet these eligibility requirements, please contact Bank and Bank will assist you in securing the appropriate arrangements with American Express. You understand that your continued acceptance of American Express Cards will at all times be subject to the discretion of Processor and American Express. Notwithstanding any other provision of the Agreement, including this OptBlue Addendum, Bank may terminate this Agreement immediately upon Bank’s receipt of instructions from Processor or American Express to discontinue providing Services to you or in connection with the OptBlue Program.

For the purposes of this Schedule, “Claim” means any claim (including initial claims, counterclaims, cross-claims, and third party claims, and any allegation of an entitlement to relief), dispute, or controversy that American Express has a right to join (or against American Express) arising from or relating to the OptBlue Program, or the relationship resulting from the OptBlue Program, whether based in contract, tort (including negligence, strict liability, fraud, or otherwise), or statutes, regulations, or any other theory.

Card Acceptance. You may elect to accept other payment Card without also accepting American Express Cards.
Arbitration.
1. Arbitration Agreement for Claims Involving American Express. In the event that you or Bank are not able to resolve a Claim, this Section 2 explains how Claims may be resolved through arbitration. You or Bank or American Express may elect to resolve any Claim by binding individual arbitration. Claims will be decided by a neutral arbitrator. If arbitration is elected by any party to resolve a Claim, the parties understand and agree that neither you nor Bank nor American Express will have the right to litigate or have a jury trial on that Claim in court. Further, you, Bank, and American Express understand and agree that the parties will not have the right to participate in a class action or in a representative capacity or in a group of persons alleged to be similarly situated pertaining to any Claim subject to arbitration under this Agreement. Arbitrator’s decisions are final and binding, with very limited review by a court, and once confirmed by a court of competent jurisdiction, an arbitrator’s final decision on a Claim is generally enforceable as a court order. Other rights you, Bank, or American Express would have in court may also not be available in arbitration.
2. Initiation of Arbitration. Claims may be referred to either JAMS or the American Arbitration Association (“AAA”), as selected by the party electing arbitration. Claims will be resolved pursuant to this Section 2 and the selected arbitration organization’s rules in effect when the Claim is filed, except where those rules conflict with this Agreement. Contact JAMS or AAA to begin an arbitration or for other information. Claims may be referred to another arbitration organization if all parties agree in writing, if American Express or Bank, on one hand, selects the organization and you, on the other hand, select the other within 30 days thereafter or if an arbitrator is appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA). Any arbitration hearing will take place in New York, NY.
3. Limitations on Arbitration. . If any party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. No Claim is to be arbitrated on a class or purported representative basis or on behalf of the general public or other persons allegedly similarly situated. The arbitrator’s authority is limited to Claims between you, us, and American Express. An arbitration award and any judgment confirming it will apply only to the specific case brought by you, us or American Express and cannot be used in any other case except to enforce the award as between you, us and American Express. This prohibition is intended to, and does, preclude you from participating in any action by any trade association or other organization against American Express. Notwithstanding any other provision in this Section 2, if any portion of these Limitations on Arbitration set forth in this Section 2 is found invalid or unenforceable, then the entire Section 2 (other than this sentence) will not apply, except that you, we, and American Express do not waive the right to appeal that decision.
4. Previously Filed Claims/No Waiver. You, Bank, or American Express may elect to arbitrate any Claim that has been filed in court at any time before trial has begun or final judgment has been entered on the Claim. You, Bank, or American Express may choose to delay enforcing or to not exercise rights under this Section 2, including the right to elect to arbitrate a claim, without waiving the right to exercise or enforce those rights on any other occasion. For the avoidance of any confusion, and not to limit its scope, this Section 2 applies to any class-action lawsuit relating to the “Honor All Cards,” “nondiscrimination,” or “no steering” provisions of the American Express Merchant Regulations, or any similar provisions of any prior American Express Card acceptance agreement, that was filed against American Express prior to the effective date of the Agreement to the extent that such claims are not already subject to arbitration pursuant to a prior agreement between Merchant and American Express.
5. Arbitrator’s Authority. The arbitrator will have the power and authority to award any relief that would have been available in court and that is authorized under this Agreement. The arbitrator has no power or authority to alter the Agreement or any of its separate provisions, including this Section 2.
6. Split Proceedings for Equitable Relief. You, Bank, or American Express may seek equitable relief in aid of arbitration prior to arbitration on the merits if necessary to preserve the status quo pending completion of the arbitration. This Section 2 shall be enforced by any court of competent jurisdiction.
7. Small Claims. American Express will not elect arbitration for any Claim you properly file in a small claims court so long as the Claim seeks individual relief only and is pending only in that court.
8. Governing Law/ Arbitration Procedures/Entry of Judgment. This Section 2 is made pursuant to a transaction involving interstate commerce and is governed by the FAA. The arbitrator shall apply New York law and applicable statutes of limitations and honor claims of privilege recognized by law. The arbitrator shall apply the rules of the arbitration organization selected, as applicable to matters relating to evidence and discovery, not federal or any state rules of procedure or evidence, provided that any party may ask the arbitrator to expand discovery by making a written request, to which the other parties will have 15 days to respond before the arbitrator rules on the request. If your Claim is for $10,000 or less, 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. At the timely request of a party, the arbitrator will provide a written opinion explaining his/her award. The arbitrator’s decision will be final and binding, except for any rights of appeal provided by the FAA. Judgment on an award rendered by the arbitrator may be entered in any state or federal court in the federal judicial district where your headquarters or your assets are located.
9. Confidentiality. The arbitration proceeding and all information submitted, relating to or presented in connection with or during the proceeding, shall be deemed confidential information not to be disclosed to any Person not a party to the arbitration. All communications, whether written or oral, made in the course of or in connection with the Claim and its resolution, by or on behalf of any party or by the arbitrator or a mediator, including any arbitration award or judgment related thereto, are confidential and inadmissible for any purpose, including impeachment or estoppel, in any other litigation or proceeding; provided, however, that evidence shall not be rendered inadmissible or non- discoverable solely as a result of its use in the arbitration.
10. Costs of Arbitration Proceedings. You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in court. American Express will be responsible for any additional arbitration fees. At your written request, American Express will consider in good faith making a temporary advance of your share of any arbitration fees or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
11. Additional Arbitration Awards. If the arbitrator rules in your favor against American Express for an amount greater than any final settlement offer American Express made before arbitration, the arbitrator’s award will include: (1) any money to which you are entitled as determined by the arbitrator, but in no case less than $5,000; and (2) any reasonable attorneys’ fees, costs and expert and other witness fees incurred by you.
12. Definitions. For purposes of this Section 2 only, (i) “American Express” includes its Affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables, and all agents, directors, and representatives of any of the foregoing, (ii) “You” includes your Affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables and all agents, directors, and representatives of any of the foregoing, and (iii) “Claim” means any allegation of an entitlement to relief, whether damages, injunctive or any other form of relief, against American Express or any other Person (including you or us) that American Express has the right to join, including any allegation involving a transaction using an American Express product or network or regarding an American Express policy or procedure.

Schedule B to Payment Processing Services Addendum

Visa Chargeback Auto Acceptance Response Service

The terms and conditions set forth in this Schedule B govern the provision of Visa Chargeback Auto Acceptance Response Service (the “Visa Response Service”). The Response Service is provided to you by Processor and not Bank. All Visa Card accepting Merchants will be automatically enrolled in the Visa Response Service.

All aspects of the Visa Response Service contemplated under this Schedule B are subject to the rest of the Agreement, as applicable, except to the extent the terms of this Schedule B directly conflict with another provision of the Agreement, in which case the terms of this Schedule B will control.

Definitions. . Capitalized terms used in this Schedule B shall have the meaning as defined in this Schedule B. Capitalized terms used in this Schedule B and not otherwise defined herein shall have the same meaning as set forth in the Agreement.
Explanation of Service. Visa charges a fee (“Late Fee”) for any Chargeback request that does not receive a response within the applicable Visa-designated timeframe (“Response Deadline”). Merchants may respond to Chargeback requests by either accepting or challenging the Chargeback request.
1. Visa Response Service Parameters. The Processor sets the parameters provided in this Section 2 for all Visa Card accepting Merchants. The Visa Response Service automatically responds to all Visa Chargebacks within 20 days when a Visa Card accepting Merchant response has not been received by the due date. A Chargeback request that the Service automatically accepts prior to the Response Deadline is referred to in this Addendum as an “Auto Accepted Request”.
2. Processor Liability. Processor will not have liability or responsibility for any Late Fee that a Visa Merchant may incur in connection with an Auto Accepted Request. A Visa Card accepting Merchant that has incurred a Late Fee in connection with an Auto Accepted Request must resolve such Late Fee directly with Visa.
  1. Illustrative Example. Reasons that a Visa Card accepting Merchant might incur a Late Fee in connection with an Auto Accepted Request may include, but are not limited to, an instance where, for example, (A) Visa requires acceptance of a Chargeback request within 20 days of receipt of such Chargeback request, (B) there is a delay between when Visa receives the Chargeback request and when Visa sends that Chargeback request to the merchant, and (C) the consequence of that delay is that the merchant’s acceptance of the Chargeback request within 20 days of its receipt of the Chargeback request nevertheless exceeds 20 days after Visa’s receipt of the Chargeback request.
3. For those Chargeback requests that the Visa Response Service automatically accepts, the Visa Card accepting Merchant will incur the loss of funds related to that Chargeback request and will incur all other applicable fees, including Chargeback fees, that it would have incurred had the Auto Acceptance Merchant manually accepted the Chargeback request.
Fees. Fees applicable (if any) to the Visa Response Services will be payable in accordance with the pricing section of the Customer Application as such may be modified by Bank from time to time.

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