Merchant Agreement Exp2019-11-20T15:09:09+00:00

This SaaS Services Agreement (“Agreement”) is entered into on the date listed below (the “Effective Date”) between Banxate, Inc. with a place of business at 78 SW 7th St, Suite 500, Miami, Florida 33130, United States (“Banxate”), and the Merchant listed above (“Merchant”).  This Agreement includes and incorporates the above Order Form, as well as the attached Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations.  There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

INTERPRETATIONS: For this Agreement, the following terms shall have the definitions as provided below.

“Agreement” means the direct agreement between the Banxate and the Merchant for the provision of the Services offered to the Merchant by the Banxate.

“Approved and Active Merchant” means any Merchant who has gone through the Banxate application process, been approved and at the time is actively or inactively using the Service.

“Bank” means any financial institution that is used by the Merchant or the Merchant’s Customers to send or receive funds to pay for or charge for goods or services.

“Barred Transaction” means any Transactions that:

a)      have been submitted in violation of any applicable Rules as defined by this Agreement;

b)     are submitted in breach of any provision of this Agreement;

c)      is submitted while Merchant is in breach of this Agreement;

d)     are for the purchase of products or services that are illegal in the domicile of the Banxate, the Merchant, any of their Banks or their Customers;

e)      are submitted following the termination of this Agreement;

f)       are not approved or that are declined by any Bank that has been integrated into the Banxate platform;

g)     are known or suspected to be fraudulent or unacceptable by Banxate or the terms of the Agreement regardless of whether Banxate has been given notice of such Transactions;

h)     have failed URL address verification;

i)       do not relate to products or services sold the approved e-commerce website or are sold in the ordinary course of the business of the Merchant;

j)       are for goods or services never advertised or promoted by Merchant; or

k)      is for a Merchant who is a shareholder, director, officer, employee, agent or representative of Merchant or any of its affiliates.

“Customer” means a Customer of the Merchant who is attempting to or has acquired products or services from the Merchant and wishes to use the Software as a means of facilitating payment to the Merchant.

“Disbursement Schedule” means the timetable (described in Exhibit A hereto) by which the Banxate shall be paid any Fees due from the Merchant for Services provided.

“Equipment” means without limitation, the hardware, servers, software, operating systems, networking, web servers and the like used by Banxate to connect to, access or otherwise offer the Services.

“Fee or Fees” means the monetary amount due to the Banxate for Services provided to the Merchant (as per Exhibit A hereto) and due for settlement from the Merchant to the Banxate.

“High-Risk Merchants” means any Merchant or business engaged in those business categories normally considered to be “High-Risk” by standard acceptable underwriting practices in the payment processing industry and described in “Exhibit C of this Agreement

“Merchant” means an entity that is a Merchant and or a seller of products or services to a Customer (as defined in this Agreement) and wishes to use the Services as a method of facilitating payment for those products or services.

“Merchant Account” means the Banxate back-office account(s) account assigned to the Merchant and used for tracking and reconciling Merchant Transactions.

“Merchant Data “ means all data provided by Merchant, during the registration, application, and onboarding process, as well as all data collected by the Banxate software under or further to Merchant Agreements and/or Transactions.

“Prohibited or Restricted Merchant” means any Merchant or Business engaged in any activities as described in “Article 2. RESTRICTIONS AND RESPONSIBILITIES” of this Agreement or any Merchant whose payment for invoices due are not paid in full by the deadlines defined in “Article 4. PAYMENT OF FEES, Section 4.2”.

“Rules” means any federal, state or Bank rules, laws, regulations, or protocol the Merchant must abide by to legally do business.

“Service(s)” means the online payment acceptance processing services described in “Article 1. SAAS SERVICES AND SUPPORT” provided by Banxate to the Merchant (and relevant Merchant Customers) via Merchant’s website.

 “Software” means the downloadable or hosted software that Banxate makes available to Merchant for processing payments via their e-commerce websites.

“Standard-Risk Merchant” means a Merchant or business not engaged in those business categories normally considered to be “High-Risk” by standard acceptable underwriting practices of the payments industry, or as specifically described as a “High-Risk Merchant” in “Schedule C” of this Agreement.

“Transaction” means any transaction for the facilitation of payment in connection with a Merchant that makes use of the Services, including, without limitation, a payment, refund, chargeback, return or any other payment transaction or instruction for payment related to the Services.

1.      SAAS SERVICES AND SUPPORT

1.1    Subject to the terms of this Agreement, Banxate will use commercially reasonable efforts to provide Merchant Services enabling Merchant to accept instant transfer payments via their website by Customers who use their online banking credentials to log into and make payments for products or services offered by the Merchant.

1.2    As part of the registration process, Banxate or the Merchant will choose an administrative username and password that will enable the Merchant to login to the Banxate back office and access their Merchant Account. Banxate reserves the right to refuse registration of or cancel passwords it deems inappropriate.

1.3    Subject to the terms hereof, Banxate will provide Merchant with reasonable technical support services per Banxate standard practices.

1.3    Banxate shall be responsible for obtaining and maintaining any Equipment and ancillary services needed for Merchant to connect to, access or otherwise use the Services. Banxate shall also be responsible for maintaining the security and uptime of the Equipment and the Service using all best endeavors to allow the Merchant access to the Service.

2.      RESTRICTIONS AND RESPONSIBILITIES

2.1    Merchant will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Banxate or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.  Concerning any Software that is distributed or provided to Merchant for use on Merchant’s website premises or devices, Banxate hereby grants Merchant a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

2.2    Furthermore, Merchant may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.3    Merchant represents, covenants and warrants that Merchant will use the Services only in compliance with Banxate’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.  Merchant hereby agrees to indemnify and hold harmless Banxate against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Merchant’s use of Services. Although Banxate has no obligation to monitor Merchant’s use of the Services, Banxate may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4    Merchant shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Merchant shall also be responsible for maintaining the security of the Equipment, Merchant account, passwords (including but not limited to administrative and user passwords) and files, and for all users of a Merchant Account or the Equipment with or without Merchant’s knowledge or consent.

2.5    Banxate may, during this relationship, require the Merchant to provide updated or additional documentation regarding Merchant and its business, including but not limited to, current Directors and Shareholders, the status of current licensing, and other information as may be deemed necessary by Banxate to comply with certain government regulations. These requirements may change from time to time and may require Merchant to provide additional information that was not requested at the time that this agreement was originated. Failure to comply with such requests within 30 days may result in the termination of this Agreement.

2.6    Merchant represents and warrants concerning each of their Customers and any payments therefrom, that it is the owner of the obligations in respect of which the Customer is making a payment.

2.7    Merchant shall not resell or attempt to resell the Services, permit any third party to use the Services or in any way itself or through any third party use the Services as a form of aggregator payment service. The Services may be used by Merchant only for products or services that Merchant itself is selling.

2.8    Merchant understands that transactions are not guaranteed by Banxate and are subject to local government and bank regulations and/or restrictions, which may include the Customer’s right to dispute or reverse any transaction as allowed by local regulations or the Customer’s bank.

2.9    Merchant understands that for Customers to use Companies Service, Customers first enroll with Zelle and abide by the Zelle Terms of Use found on their website at https://www.zellepay.com/terms-use.

2.10  Merchant shall never knowingly use the Services for illegal, unlawful or Barred Transactions including but not limited to: Pharmaceuticals and other controlled substances, Illegal drugs; Drug paraphernalia; Firearms, ammunition or other weapons; Sexually oriented activities or materials; Pornography; Obscene or offensive activities or materials; Materials or activities that promote intolerance, violence or hate; Ponzi or pyramid schemes; Illegal gambling, gaming, lotteries or sweepstakes; Traveler’s checks, money orders, equities, annuities, or currencies, including digital currencies, such as bitcoins; Counterfeit materials; Infringement on the copyright, patent, trademark, trade secret or other intellectual property rights the underlying transfer network, a Network Financial Institution, or any other third party; Terrorist funding; Fraud; Scams; Money laundering; or Any other illegal activity or unlawful purpose. Merchant also understands that using the Service for the aforementioned Transactions will result in a reclassification of the Merchant from an Approved and Active Merchant status to a Prohibited or Restricted Merchant status and subsequently disqualify them from using the Services.

2.11  Merchant understands that Services are provided subject to strict government, Bank, Bank association and other applicable rules and regulations together with any applicable law (collectively, the “Rules”). Merchant shall always be in conformity with the Rules, to the extent these are known or publicly available to and applicable to Merchant and it shall use reasonable commercial efforts to ensure that it’s Customers comply with the Rules; It is the responsibility of Merchant to know and understand all Rules and regulations that the Merchant is subject to.

2.12  Banxate is not a collection agency or invoicing Banxate nor by this Agreement is it acting as an agent for the Merchant. The Services are limited to providing software as a service. Banxate will under no circumstances be under any obligation to communicate, contact or deal with the Merchant’s Customers directly except by way of providing the ability to pay for the goods or services offered by the Merchant via the Banxate software. through the Service, or as required by the Rules.

2.13  Merchant shall not use the name or any mark or reference to Banxate or any of its affiliates, integrated banks, services or otherwise except as specifically approved by Banxate in writing.

3.      CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1    Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Banxate includes non-public information regarding features, functionality, and performance of the Service.  Proprietary Information of Merchant includes non-public data provided by Merchant to Banxate to enable the provision of the Services (“Merchant Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2    Merchant shall own all right, title and interest in and to the Merchant Data.  Banxate shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3    Notwithstanding anything to the contrary, Banxate shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Merchant Data and data derived therefrom), and  Banxate will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Banxate offerings, and (ii) disclose such data solely in aggregate or another de-identified form in connection with its business.  No rights or licenses are granted except as expressly set forth herein.

3.4    Banxate hereby grants Merchant a non-exclusive license to use, for the term of this Agreement, Banxate trademarks and all related logos, icons and any other images provided to Merchant by Banxate, solely in an online environment and solely to identify Merchant as a user of the Service. Merchant shall obtain prior written approval from Banxate for each use of Banxate trademarks and Merchant shall use such trademarks only in a manner contemplated by such approval.

4.      PAYMENT OF FEES

4.1    Merchant will pay Banxate the then applicable fees described in the Order Form for the Services and Implementation Services per the terms therein (the “Fees”).  If Merchant’s use of the Services exceeds the Service Capacity outlined in the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Merchant shall be billed for such usage and Merchant agrees to pay the additional fees in the manner provided herein.  Banxate reserves the right to change the Fees or applicable charges and to institute new Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Merchant (which may be sent by email). If Merchant believes that Banxate has billed Merchant incorrectly, Merchant must contact Banxate no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit.  Inquiries should be directed to the Banxate finance department at finance@banxate.com.

4.2    Aside from physical mail, Banxate may, after giving the Merchant five (5) days written or electronic notice, choose to bill or invoice the Merchant by way of email, text, Banxate system messages or any other form of digital or electronic  communications in which case, full payment for invoices issued for any given week must be received by Banxate within three (3) business days ending at (24:00) midnight EST on the third business day, after delivery of invoice. Should invoice not be paid by the deadline, Banxate at its discretion maintains the right to change the status of Merchant from Approved and Active to Prohibited or Restricted and subsequently bar access to the Service until the invoice has been paid. Banxate reserves the right to refuse service for any Merchant whose accounts have gone into default more than three (3) times in a one (1) year period. Unpaid amounts are subject to a finance charge of 1.5% per week, compounded on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Merchant shall be responsible for all taxes associated with Services other than the U.S. taxable consequence due to the Internal Revenue Service (IRS) resulting from net income generated by Banxate.

4.3    Merchant shall provide and keep updated account information and authorizations as Banxate may reasonably require to collect Fees owed to Banxate by the Merchant.

5.      TERM AND TERMINATION

5.1    Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

5.2    In addition to any other remedies, it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment) if the other party materially breaches any of the terms or conditions of this Agreement.  Merchant will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Banxate will make all Merchant Data available to Merchant for electronic retrieval for thirty (30) days, but thereafter Banxate may, but is not obligated to, delete stored Merchant Data.  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6.     WARRANTY AND DISCLAIMER

6.1    Banxate shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance, either by Banxate or by third-party providers, or because of other causes beyond the reasonable control of Banxate, but Banxate shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  However, Banxate does not warrant that the Services will be uninterrupted or error-free; nor does it make any warranty as to the results that may be obtained from the use of the Services.  EXCEPT AS EXPRESSLY OUTLINED IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND Banxate DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANT’S ABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.           

7.     INDEMNITY

7.1    Banxate shall hold Merchant harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Banxate is promptly notified of all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Banxate will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Banxate, (ii) made in whole or in part in accordance with Merchant specifications, (iii) that are modified after delivery by Banxate, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Merchant continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Merchant’s use of the Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Banxate to be infringing, Banxate may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Merchant a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Merchant’s rights hereunder and provide Merchant a refund of any prepaid, unused fees for the Service.

8.     LIMITATION OF LIABILITY

8.1    NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, BANXATE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) MERCHANT’S FAILURE TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS FOR THE PROVISION OF ITS SERVICES AND OPERATIONS IN THE JURISDICTIONS IN WHICH IT CARRIES ON BUSINESS OR IN WHICH IT’S SUPPLIERS OR CUSTOMERS ARE DOMICILED; (B) THE DISHONORING, DISPUTE OR RETURN OF ANY Customer TRANSACTION BY THEIR BANK; (C) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (D) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LIABILITY WHICH THE Merchant INCURS TO ANY THIRD PARTY TO THE EXTENT CAUSED OR CONTRIBUTED TO BY THE Merchant OR ANY OF ITS SUPPLIERS OR CUSTOMERS; (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY Merchant TO Banxate FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT Banxate HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (E) FOR ANY MATTER BEYOND THE REASONABLE CONTROL OF BANXATE.

9.     FORCE MAJEURE

9.1    Except for the payment of expenses or fees due hereunder by the Merchant, which have accrued before an event of force majeure, if the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor dispute, act of God, act of terrorism or any other cause beyond the reasonable control of a party, that party shall be excused from such performance to the extent it is prevented, hindered or delayed by such cause, provided that the parties shall at all times act in good faith and use their commercially reasonable efforts to recommence performance as soon as practicable.

10.     MISCELLANEOUS

10.1    If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Merchant except with prior written consent from Banxate.  Banxate may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Merchant does not have any authority of any kind to bind Banxate in any respect whatsoever.  This Agreement shall be governed by the laws of the State of Florida without regard to its conflict of laws provisions.  Any dispute arising between the parties hereto shall be settled by arbitration to be held in Florida, before a single arbitrator and in accordance with the Commercial Arbitration Rules then in effect and/or pursuant to the statutes of Florida. Each party irrevocably and unconditionally consents to the jurisdiction of any such proceeding and waives any objection that it may have to personal jurisdiction or the laying of the venue of any such proceeding. The parties will cooperate with each other in causing the arbitration to be held in as efficient and expeditious a manner as practicable. If the parties are unable to appoint a mutually acceptable arbitrator within thirty (30) days after a party gives written notice to the other requesting resolution of a dispute, the Court shall appoint the arbitrator in accordance with such Commercial Arbitration Rules and/or the Arbitrations Act. The arbitrator may grant any and all relief permitted by the Arbitration Act. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. Nothing herein shall prevent the parties from settling any dispute by mutual agreement at any time.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  Should relief be granted to the Merchant, under no circumstances shall the liability of the Banxate hereunder exceed the total of Fees actually paid to the Banxate hereunder during the six months prior to the event giving rise to liability. The indemnification and limitation of liability provisions of this Agreement shall survive termination hereof.  Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes. On the delivery date, if delivered personally to the party to which the same is directed; One (1) business day after deposit with a commercial overnight carrier, with written verification of receipt; Five (5) business days after the mailing date whether or not actually received, if sent by mail, return receipt requested, postage and charges prepaid, or by any other means of rapid mail delivery for which a receipt is available; or Upon facsimile transmission, with written verification of receipt, if received during normal business hours at the place of receipt, or else on the next following business day, to which the same is directed, as set forth in the signature section below:

10.2    The below addresses may be changed by notice of such change, given as provided herein, to the last address designated.  The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Merchant otherwise agrees to reasonably cooperate with Banxate to serve as a reference account upon request.  This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, whether written or oral, in connection with such matter.  The parties hereto each represent that they have all requisite power and authority to execute this Agreement. This Agreement may be signed in multiple counterparts, each of which shall be considered an original, but all of which, together, shall constitute a single agreement.  BOTH PARTIES ACKNOWLEDGES AND AGREES THAT EACH HAS HAD THE OPPORTUNITY TO OBTAIN LEGAL ADVICE WITH RESPECT TO THIS AGREEMENT AND HAS CAREFULLY READ AND CONSIDERED THE PROVISIONS OF THIS AGREEMENT AND, HAVING DONE SO, AGREES THAT THE RESTRICTIONS SET FORTH ARE FAIR AND REASONABLE AND REQUIRED FOR THE PROTECTION OF THE Banxate AND ITS AFFILIATES OR ASSOCIATED COMPANIES. BOTH PARTIES ALSO ACCEPT THAT THE ALLOCATION OF LIABILITIES AND RISK BETWEEN THE PARTIES AS AFFECTED BY THIS AGREEMENT HAS BEEN EVALUATED IN ACCORDANCE WITH THE ENTIRE FRAMEWORK OF THIS AGREEMENT TAKING INTO ACCOUNT SUCH MATTERS AS THE NATURE OF THE SERVICES, PRICE AND THE POSSIBLE AVAILABILITY AND COST TO EACH PARTY OF PUTTING INTO PLACE SUCH PREVENTATIVE, PROTECTIVE, CURATIVE, INSURANCE AND OTHER MEASURES AS WOULD BE SUFFICIENT TO MINIMIZE THE IMPACT AND AMOUNT OF ANY LOSS SUFFERED SHOULD SUCH RISK MATERIALIZE, THAT ANY CHANGE TO THE AGREED ALLOCATION OF LIABILITIES AND RISK AS SET OUT IN THIS AGREEMENT WOULD IN TURN REQUIRE A RENEGOTIATION OF THE TERMS OF THIS AGREEMENT (INCLUDING AS TO PRICE) AND ACCORDINGLY THAT SUCH ALLOCATION OF LIABILITIES AND RISK IS REASONABLE AS BETWEEN THE PARTIES IN ALL THE CIRCUMSTANCES AS AT THE DATE OF THIS AGREEMENT.

EXHIBIT A – SERVICE FEES

One Time Set Up Fee: WAIVED

Bank Integration Fee: WAIVED

Monthly Minimum Fee: WAIVED

Per Transaction Fee: 3%

DISPERSMENT SCHEDULE

Invoicing Issuance Date: Invoices will be issued and delivered by Banxate once a week on by (24:00) midnight EST, Monday evening / Tuesday morning.

Payment Due Date: Payment of invoice must be received and confirmed by Banxate within seven (7) business days ending at (24:00) midnight EST, on the following Monday evening / Tuesday morning, or Merchant risks having the service turned off.

Payment Method: Payments will be made via instant transfer using the Banxate payment system unless the amount exceeds the sending limits set by the Merchants Bank. In this case, an ACH transaction which has been pre-authorized by the Merchant will be initiated by Banxate.

EXHIBIT B – SUPPORT TERMS

Support Hours: Banxate will provide Technical Support to Merchant via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Eastern time, with the exclusion of Federal Holidays.

Contact Details: Contact: Merchant may initiate a helpdesk ticket during Support Hours by calling (424) 226-9283 or any time by emailing support@Banxate.com.

Response Time: Banxate will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.

Service Terms: The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance.  If Merchant requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance.  Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Banxate’s control will also be excluded from any such calculation. Merchant’s sole and exclusive remedy, and Banxate’s entire liability, in connection with Service availability, shall be that for each period of downtime lasting longer than one (1) hour, Banxate will credit Merchant 1.5% of Service Fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day.  Downtime shall begin to accrue as soon as Merchant (with notice to Banxate) recognizes that downtime is taking place and continues until the availability of the Services is restored.  In order to receive downtime credit, Merchant must notify Banxate in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit.  Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event.  Banxate will only apply a credit to the month in which the incident occurred.  Banxate’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Banxate to provide adequate service levels under this Agreement. No limits on usage.

MERCHANT SIGNATURE

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PAYMENT TERMS

In the event that any weekly invoice amount due to Banxate exceeds the instant transfer daily sending limits set by my/our Bank or the Service is not available, I hereby authorize Banxate to collect payment for the amount owed by initiating an ACH transfer from my/our checking/savings account as followed:

PAYMENT TERMS

In the event that any weekly invoice amount due to Banxate exceeds the instant transfer daily sending limits set by my/our Bank or the Service is not available, I hereby authorize Banxate to collect payment for the amount owed by initiating an ACH transfer from my/our checking/savings account as followed:

This SaaS Services Agreement (“Agreement”) is entered into on the date listed below (the “Effective Date”) between Banxate, Inc. with a place of business at 78 SW 7th St, Suite 500, Miami, Florida 33130, United States (“Banxate”), and the Merchant listed above (“Merchant”).  This Agreement includes and incorporates the above Order Form, as well as the attached Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations.  There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

INTERPRETATIONS: For this Agreement, the following terms shall have the definitions as provided below.

“Agreement” means the direct agreement between the Banxate and the Merchant for the provision of the Services offered to the Merchant by the Banxate.

“Approved and Active Merchant” means any Merchant who has gone through the Banxate application process, been approved and at the time is actively or inactively using the Service.

“Bank” means any financial institution that is used by the Merchant or the Merchant’s Customers to send or receive funds to pay for or charge for goods or services.

“Barred Transaction” means any Transactions that:

a)      have been submitted in violation of any applicable Rules as defined by this Agreement;

b)     are submitted in breach of any provision of this Agreement;

c)      is submitted while Merchant is in breach of this Agreement;

d)     are for the purchase of products or services that are illegal in the domicile of the Banxate, the Merchant, any of their Banks or their Customers;

e)      are submitted following the termination of this Agreement;

f)       are not approved or that are declined by any Bank that has been integrated into the Banxate platform;

g)     are known or suspected to be fraudulent or unacceptable by Banxate or the terms of the Agreement regardless of whether Banxate has been given notice of such Transactions;

h)     have failed URL address verification;

i)       do not relate to products or services sold the approved e-commerce website or are sold in the ordinary course of the business of the Merchant;

j)       are for goods or services never advertised or promoted by Merchant; or

k)      is for a Merchant who is a shareholder, director, officer, employee, agent or representative of Merchant or any of its affiliates.

“Customer” means a Customer of the Merchant who is attempting to or has acquired products or services from the Merchant and wishes to use the Software as a means of facilitating payment to the Merchant.

“Disbursement Schedule” means the timetable (described in Exhibit A hereto) by which the Banxate shall be paid any Fees due from the Merchant for Services provided.

“Equipment” means without limitation, the hardware, servers, software, operating systems, networking, web servers and the like used by Banxate to connect to, access or otherwise offer the Services.

“Fee or Fees” means the monetary amount due to the Banxate for Services provided to the Merchant (as per Exhibit A hereto) and due for settlement from the Merchant to the Banxate.

“High-Risk Merchants” means any Merchant or business engaged in those business categories normally considered to be “High-Risk” by standard acceptable underwriting practices in the payment processing industry and described in “Exhibit C of this Agreement

“Merchant” means an entity that is a Merchant and or a seller of products or services to a Customer (as defined in this Agreement) and wishes to use the Services as a method of facilitating payment for those products or services.

“Merchant Account” means the Banxate back-office account(s) account assigned to the Merchant and used for tracking and reconciling Merchant Transactions.

“Merchant Data “ means all data provided by Merchant, during the registration, application, and onboarding process, as well as all data collected by the Banxate software under or further to Merchant Agreements and/or Transactions.

“Prohibited or Restricted Merchant” means any Merchant or Business engaged in any activities as described in “Article 2. RESTRICTIONS AND RESPONSIBILITIES” of this Agreement or any Merchant whose payment for invoices due are not paid in full by the deadlines defined in “Article 4. PAYMENT OF FEES, Section 4.2”.

“Rules” means any federal, state or Bank rules, laws, regulations, or protocol the Merchant must abide by to legally do business.

“Service(s)” means the online payment acceptance processing services described in “Article 1. SAAS SERVICES AND SUPPORT” provided by Banxate to the Merchant (and relevant Merchant Customers) via Merchant’s website.

 “Software” means the downloadable or hosted software that Banxate makes available to Merchant for processing payments via their e-commerce websites.

“Standard-Risk Merchant” means a Merchant or business not engaged in those business categories normally considered to be “High-Risk” by standard acceptable underwriting practices of the payments industry, or as specifically described as a “High-Risk Merchant” in “Schedule C” of this Agreement.

“Transaction” means any transaction for the facilitation of payment in connection with a Merchant that makes use of the Services, including, without limitation, a payment, refund, chargeback, return or any other payment transaction or instruction for payment related to the Services.

1.      SAAS SERVICES AND SUPPORT

1.1    Subject to the terms of this Agreement, Banxate will use commercially reasonable efforts to provide Merchant Services enabling Merchant to accept instant transfer payments via their website by Customers who use their online banking credentials to log into and make payments for products or services offered by the Merchant.

1.2    As part of the registration process, Banxate or the Merchant will choose an administrative username and password that will enable the Merchant to login to the Banxate back office and access their Merchant Account. Banxate reserves the right to refuse registration of or cancel passwords it deems inappropriate.

1.3    Subject to the terms hereof, Banxate will provide Merchant with reasonable technical support services per Banxate standard practices.

1.3    Banxate shall be responsible for obtaining and maintaining any Equipment and ancillary services needed for Merchant to connect to, access or otherwise use the Services. Banxate shall also be responsible for maintaining the security and uptime of the Equipment and the Service using all best endeavors to allow the Merchant access to the Service.

2.      RESTRICTIONS AND RESPONSIBILITIES

2.1    Merchant will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Banxate or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.  Concerning any Software that is distributed or provided to Merchant for use on Merchant’s website premises or devices, Banxate hereby grants Merchant a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

2.2    Furthermore, Merchant may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.3    Merchant represents, covenants and warrants that Merchant will use the Services only in compliance with Banxate’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.  Merchant hereby agrees to indemnify and hold harmless Banxate against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Merchant’s use of Services. Although Banxate has no obligation to monitor Merchant’s use of the Services, Banxate may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4    Merchant shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Merchant shall also be responsible for maintaining the security of the Equipment, Merchant account, passwords (including but not limited to administrative and user passwords) and files, and for all users of a Merchant Account or the Equipment with or without Merchant’s knowledge or consent.

2.5    Banxate may, during this relationship, require the Merchant to provide updated or additional documentation regarding Merchant and its business, including but not limited to, current Directors and Shareholders, the status of current licensing, and other information as may be deemed necessary by Banxate to comply with certain government regulations. These requirements may change from time to time and may require Merchant to provide additional information that was not requested at the time that this agreement was originated. Failure to comply with such requests within 30 days may result in the termination of this Agreement.

2.6    Merchant represents and warrants concerning each of their Customers and any payments therefrom, that it is the owner of the obligations in respect of which the Customer is making a payment.

2.7    Merchant shall not resell or attempt to resell the Services, permit any third party to use the Services or in any way itself or through any third party use the Services as a form of aggregator payment service. The Services may be used by Merchant only for products or services that Merchant itself is selling.

2.8    Merchant understands that transactions are not guaranteed by Banxate and are subject to local government and bank regulations and/or restrictions, which may include the Customer’s right to dispute or reverse any transaction as allowed by local regulations or the Customer’s bank.

2.9    Merchant understands that for Customers to use Companies Service, Customers first enroll with Zelle and abide by the Zelle Terms of Use found on their website at https://www.zellepay.com/terms-use.

2.10  Merchant shall never knowingly use the Services for illegal, unlawful or Barred Transactions including but not limited to: Pharmaceuticals and other controlled substances, Illegal drugs; Drug paraphernalia; Firearms, ammunition or other weapons; Sexually oriented activities or materials; Pornography; Obscene or offensive activities or materials; Materials or activities that promote intolerance, violence or hate; Ponzi or pyramid schemes; Illegal gambling, gaming, lotteries or sweepstakes; Traveler’s checks, money orders, equities, annuities, or currencies, including digital currencies, such as bitcoins; Counterfeit materials; Infringement on the copyright, patent, trademark, trade secret or other intellectual property rights the underlying transfer network, a Network Financial Institution, or any other third party; Terrorist funding; Fraud; Scams; Money laundering; or Any other illegal activity or unlawful purpose. Merchant also understands that using the Service for the aforementioned Transactions will result in a reclassification of the Merchant from an Approved and Active Merchant status to a Prohibited or Restricted Merchant status and subsequently disqualify them from using the Services.

2.11  Merchant understands that Services are provided subject to strict government, Bank, Bank association and other applicable rules and regulations together with any applicable law (collectively, the “Rules”). Merchant shall always be in conformity with the Rules, to the extent these are known or publicly available to and applicable to Merchant and it shall use reasonable commercial efforts to ensure that it’s Customers comply with the Rules; It is the responsibility of Merchant to know and understand all Rules and regulations that the Merchant is subject to.

2.12  Banxate is not a collection agency or invoicing Banxate nor by this Agreement is it acting as an agent for the Merchant. The Services are limited to providing software as a service. Banxate will under no circumstances be under any obligation to communicate, contact or deal with the Merchant’s Customers directly except by way of providing the ability to pay for the goods or services offered by the Merchant via the Banxate software. through the Service, or as required by the Rules.

2.13  Merchant shall not use the name or any mark or reference to Banxate or any of its affiliates, integrated banks, services or otherwise except as specifically approved by Banxate in writing.

3.      CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1    Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Banxate includes non-public information regarding features, functionality, and performance of the Service.  Proprietary Information of Merchant includes non-public data provided by Merchant to Banxate to enable the provision of the Services (“Merchant Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2    Merchant shall own all right, title and interest in and to the Merchant Data.  Banxate shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3    Notwithstanding anything to the contrary, Banxate shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Merchant Data and data derived therefrom), and  Banxate will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Banxate offerings, and (ii) disclose such data solely in aggregate or another de-identified form in connection with its business.  No rights or licenses are granted except as expressly set forth herein.

3.4    Banxate hereby grants Merchant a non-exclusive license to use, for the term of this Agreement, Banxate trademarks and all related logos, icons and any other images provided to Merchant by Banxate, solely in an online environment and solely to identify Merchant as a user of the Service. Merchant shall obtain prior written approval from Banxate for each use of Banxate trademarks and Merchant shall use such trademarks only in a manner contemplated by such approval.

4.      PAYMENT OF FEES

4.1    Merchant will pay Banxate the then applicable fees described in the Order Form for the Services and Implementation Services per the terms therein (the “Fees”).  If Merchant’s use of the Services exceeds the Service Capacity outlined in the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Merchant shall be billed for such usage and Merchant agrees to pay the additional fees in the manner provided herein.  Banxate reserves the right to change the Fees or applicable charges and to institute new Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Merchant (which may be sent by email). If Merchant believes that Banxate has billed Merchant incorrectly, Merchant must contact Banxate no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit.  Inquiries should be directed to the Banxate finance department at finance@banxate.com.

4.2    Aside from physical mail, Banxate may, after giving the Merchant five (5) days written or electronic notice, choose to bill or invoice the Merchant by way of email, text, Banxate system messages or any other form of digital or electronic  communications in which case, full payment for invoices issued for any given week must be received by Banxate within three (3) business days ending at (24:00) midnight EST on the third business day, after delivery of invoice. Should invoice not be paid by the deadline, Banxate at its discretion maintains the right to change the status of Merchant from Approved and Active to Prohibited or Restricted and subsequently bar access to the Service until the invoice has been paid. Banxate reserves the right to refuse service for any Merchant whose accounts have gone into default more than three (3) times in a one (1) year period. Unpaid amounts are subject to a finance charge of 1.5% per week, compounded on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Merchant shall be responsible for all taxes associated with Services other than the U.S. taxable consequence due to the Internal Revenue Service (IRS) resulting from net income generated by Banxate.

4.3    Merchant shall provide and keep updated account information and authorizations as Banxate may reasonably require to collect Fees owed to Banxate by the Merchant.

5.      TERM AND TERMINATION

5.1    Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

5.2    In addition to any other remedies, it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment) if the other party materially breaches any of the terms or conditions of this Agreement.  Merchant will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Banxate will make all Merchant Data available to Merchant for electronic retrieval for thirty (30) days, but thereafter Banxate may, but is not obligated to, delete stored Merchant Data.  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6.     WARRANTY AND DISCLAIMER

6.1    Banxate shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance, either by Banxate or by third-party providers, or because of other causes beyond the reasonable control of Banxate, but Banxate shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  However, Banxate does not warrant that the Services will be uninterrupted or error-free; nor does it make any warranty as to the results that may be obtained from the use of the Services.  EXCEPT AS EXPRESSLY OUTLINED IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND Banxate DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANT’S ABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.           

7.     INDEMNITY

7.1    Banxate shall hold Merchant harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Banxate is promptly notified of all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Banxate will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Banxate, (ii) made in whole or in part in accordance with Merchant specifications, (iii) that are modified after delivery by Banxate, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Merchant continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Merchant’s use of the Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Banxate to be infringing, Banxate may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Merchant a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Merchant’s rights hereunder and provide Merchant a refund of any prepaid, unused fees for the Service.

8.     LIMITATION OF LIABILITY

8.1    NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, BANXATE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) MERCHANT’S FAILURE TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS FOR THE PROVISION OF ITS SERVICES AND OPERATIONS IN THE JURISDICTIONS IN WHICH IT CARRIES ON BUSINESS OR IN WHICH IT’S SUPPLIERS OR CUSTOMERS ARE DOMICILED; (B) THE DISHONORING, DISPUTE OR RETURN OF ANY Customer TRANSACTION BY THEIR BANK; (C) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (D) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LIABILITY WHICH THE Merchant INCURS TO ANY THIRD PARTY TO THE EXTENT CAUSED OR CONTRIBUTED TO BY THE Merchant OR ANY OF ITS SUPPLIERS OR CUSTOMERS; (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY Merchant TO Banxate FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT Banxate HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (E) FOR ANY MATTER BEYOND THE REASONABLE CONTROL OF BANXATE.

9.     FORCE MAJEURE

9.1    Except for the payment of expenses or fees due hereunder by the Merchant, which have accrued before an event of force majeure, if the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor dispute, act of God, act of terrorism or any other cause beyond the reasonable control of a party, that party shall be excused from such performance to the extent it is prevented, hindered or delayed by such cause, provided that the parties shall at all times act in good faith and use their commercially reasonable efforts to recommence performance as soon as practicable.

10.     MISCELLANEOUS

10.1    If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Merchant except with prior written consent from Banxate.  Banxate may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Merchant does not have any authority of any kind to bind Banxate in any respect whatsoever.  This Agreement shall be governed by the laws of the State of Florida without regard to its conflict of laws provisions.  Any dispute arising between the parties hereto shall be settled by arbitration to be held in Florida, before a single arbitrator and in accordance with the Commercial Arbitration Rules then in effect and/or pursuant to the statutes of Florida. Each party irrevocably and unconditionally consents to the jurisdiction of any such proceeding and waives any objection that it may have to personal jurisdiction or the laying of the venue of any such proceeding. The parties will cooperate with each other in causing the arbitration to be held in as efficient and expeditious a manner as practicable. If the parties are unable to appoint a mutually acceptable arbitrator within thirty (30) days after a party gives written notice to the other requesting resolution of a dispute, the Court shall appoint the arbitrator in accordance with such Commercial Arbitration Rules and/or the Arbitrations Act. The arbitrator may grant any and all relief permitted by the Arbitration Act. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. Nothing herein shall prevent the parties from settling any dispute by mutual agreement at any time.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  Should relief be granted to the Merchant, under no circumstances shall the liability of the Banxate hereunder exceed the total of Fees actually paid to the Banxate hereunder during the six months prior to the event giving rise to liability. The indemnification and limitation of liability provisions of this Agreement shall survive termination hereof.  Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes. On the delivery date, if delivered personally to the party to which the same is directed; One (1) business day after deposit with a commercial overnight carrier, with written verification of receipt; Five (5) business days after the mailing date whether or not actually received, if sent by mail, return receipt requested, postage and charges prepaid, or by any other means of rapid mail delivery for which a receipt is available; or Upon facsimile transmission, with written verification of receipt, if received during normal business hours at the place of receipt, or else on the next following business day, to which the same is directed, as set forth in the signature section below:

10.2    The below addresses may be changed by notice of such change, given as provided herein, to the last address designated.  The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Merchant otherwise agrees to reasonably cooperate with Banxate to serve as a reference account upon request.  This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, whether written or oral, in connection with such matter.  The parties hereto each represent that they have all requisite power and authority to execute this Agreement. This Agreement may be signed in multiple counterparts, each of which shall be considered an original, but all of which, together, shall constitute a single agreement.  BOTH PARTIES ACKNOWLEDGES AND AGREES THAT EACH HAS HAD THE OPPORTUNITY TO OBTAIN LEGAL ADVICE WITH RESPECT TO THIS AGREEMENT AND HAS CAREFULLY READ AND CONSIDERED THE PROVISIONS OF THIS AGREEMENT AND, HAVING DONE SO, AGREES THAT THE RESTRICTIONS SET FORTH ARE FAIR AND REASONABLE AND REQUIRED FOR THE PROTECTION OF THE Banxate AND ITS AFFILIATES OR ASSOCIATED COMPANIES. BOTH PARTIES ALSO ACCEPT THAT THE ALLOCATION OF LIABILITIES AND RISK BETWEEN THE PARTIES AS AFFECTED BY THIS AGREEMENT HAS BEEN EVALUATED IN ACCORDANCE WITH THE ENTIRE FRAMEWORK OF THIS AGREEMENT TAKING INTO ACCOUNT SUCH MATTERS AS THE NATURE OF THE SERVICES, PRICE AND THE POSSIBLE AVAILABILITY AND COST TO EACH PARTY OF PUTTING INTO PLACE SUCH PREVENTATIVE, PROTECTIVE, CURATIVE, INSURANCE AND OTHER MEASURES AS WOULD BE SUFFICIENT TO MINIMIZE THE IMPACT AND AMOUNT OF ANY LOSS SUFFERED SHOULD SUCH RISK MATERIALIZE, THAT ANY CHANGE TO THE AGREED ALLOCATION OF LIABILITIES AND RISK AS SET OUT IN THIS AGREEMENT WOULD IN TURN REQUIRE A RENEGOTIATION OF THE TERMS OF THIS AGREEMENT (INCLUDING AS TO PRICE) AND ACCORDINGLY THAT SUCH ALLOCATION OF LIABILITIES AND RISK IS REASONABLE AS BETWEEN THE PARTIES IN ALL THE CIRCUMSTANCES AS AT THE DATE OF THIS AGREEMENT.

EXHIBIT A – SERVICE FEES

One Time Set Up Fee: WAIVED

Bank Integration Fee: WAIVED

Monthly Minimum Fee: WAIVED

Per Transaction Fee: 3%

DISPERSMENT SCHEDULE

Invoicing Issuance Date: Invoices will be issued and delivered by Banxate once a week on by (24:00) midnight EST, Monday evening / Tuesday morning.

Payment Due Date: Payment of invoice must be received and confirmed by Banxate within seven (7) business days ending at (24:00) midnight EST, on the following Monday evening / Tuesday morning, or Merchant risks having the service turned off.

Payment Method: Payments will be made via instant transfer using the Banxate payment system unless the amount exceeds the sending limits set by the Merchants Bank. In this case, an ACH transaction which has been pre-authorized by the Merchant will be initiated by Banxate.

EXHIBIT B – SUPPORT TERMS

Support Hours: Banxate will provide Technical Support to Merchant via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Eastern time, with the exclusion of Federal Holidays.

Contact Details: Contact: Merchant may initiate a helpdesk ticket during Support Hours by calling (424) 226-9283 or any time by emailing support@Banxate.com.

Response Time: Banxate will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.

Service Terms: The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance.  If Merchant requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance.  Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Banxate’s control will also be excluded from any such calculation. Merchant’s sole and exclusive remedy, and Banxate’s entire liability, in connection with Service availability, shall be that for each period of downtime lasting longer than one (1) hour, Banxate will credit Merchant 1.5% of Service Fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day.  Downtime shall begin to accrue as soon as Merchant (with notice to Banxate) recognizes that downtime is taking place and continues until the availability of the Services is restored.  In order to receive downtime credit, Merchant must notify Banxate in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit.  Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event.  Banxate will only apply a credit to the month in which the incident occurred.  Banxate’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Banxate to provide adequate service levels under this Agreement. No limits on usage.

MERCHANT SIGNATURE

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