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to its ACH Operator, or that the ACH Operator will timely transmit the Entry for same-day processing and settlement, It is understood that the ODFI, ACH Operator and Receiving Depository
Financial Institution (RDIT) may impose additional requirements for SwiftSettle, in accordance with the NACHA Rules, or their own policies and procedures.
16. CONSUMER CONVENIENCE FEES. MERCHANT acknowledges that this Agreement may also contemplate a Consumer Convenience Fee Option and MERCHANT wishes to participate in
the Consumer Convenience Fee Option in which Paya-EFT shall collect a Convenience Fee from the consumer. MERCHANT shall be solely responsible for inforrning its customers of such
convenience fee charges and to obtain customer’s authorization, by signature or similarly authenticated, to debit the convenience fee from customer’s bank account via ACH debit,
MERCHANT’s customer authorization process should take into consideration whether the convenience fee is or is not included in the face amount of the check and for obtaining proper
authorization so that the total amount to be deducted (both the sale amount and the fee) are properly authorized by the customer. MERCHANT hereby confirms that Convenience fees are
acceptable to be added under all applicable laws.
17, ASSIGNMENT OF CHECKS AND ACH DEBITS, As of the date of this Agreement and by subscribing to Paya-EFT services, MERCHANT shall be deemed to have assigned to Paya-EFT,
without recourse, all of MERCHANT’s right, title and interest in any and all ACH Debits return fees and checks, including any rights to treble or punitive damages permitted under applicable
law, MERCHANT shall execute and deliver endorsements, instruments, and papers and shall do whatever is necessary under the laws of any applicable jurisdictions to secure and defend Paya-
EFT’s rights and shall do nothing to prejudice those rights. MERCHANT shall cooperate with Paya-EFT in pursuing Paya-EFT’s rights, including suing or prosecution of the customer under all
applicable laws,
18, COMPLIANCE AND DISCLOSURE OF INFORMATION. MERCHANT agrees to comply with all applicable state or federal laws, rules and regulations affecting the use of checks, drafts and
ACH transactions, including but not mited to rules and procedural guidelines established by the Federal Trade Commission ("FTC") and Regulation E. (Reg. E), MERCHANT is solely
responsible for any and all losses incurred by MERCHANT or Paya-EFT in the event MERCHANT initiates any transaction prohibited by Regulation E Rules or other rules or laws of the United
States of America ("USA") or in breach of this Agreement. MERCHANT shall provide such information and certifications as Paya-EFT may reasonably require from time to time to determine
MERCHANTS compliance with the terms and conditions of this Agreement and applicable law, MERCHANT finther agrees to produce and make available for inspection by Paya-EFT or its
officers, agents, attorneys, accountants; or representatives, such books and records of MERCHANT as Paya-EFT may deem reasonably necessary to be adequately informed of the business and
financial condition of MERCHANT, or the ability of MERCHANT to observe or perform its obligations to Paya-EFT pursuant to this Agreement. MERCHANT further agrees to provide to
Paya-EFT from time to time such information including, but not limited to, credit reports, personal and/or business financial statements, income tax returns, or other such information as Paya-
EFT may request, MERCHANT grants to Paya-EFT continuing authority to conduct credit ohécks and background investigations and inquiries conceming MERCHANT and MERCHANT'S
owner(s) including, but not limited to, character and business references and the finaricial condition’ of MERCHANT and MERCHANT'S owner(s). MERCHANT expressly authorizes Paya-EFT
or its agents, altomeys, accountants, and representatives to provide and receive such information from any and all third parties direttly, without further consent or authorization on the part of
MERCHANT. Paya-EFT may share with others its credit, sales and othér information. MERCHANT will not transfer, sell, of mitige or liquidate its bissitiess or assets or otherwise transfor
control of its business, change its.ownership in any amount or-respect, engage.in any joint venture partnership or similar business arrangement, change its basic nature’or method of business,
types.of products sold or engage in sales by phone ‘or mail order without providing notice to Paya-EFT and provide Paya-EFT with thé opportunity to terminate this Agreenient,
19. COMPLIANCE WITH THE RULES AND APPLICABLE LAW, MERCHANT's rights and obligations with respect to’any Entry are governed by the NACHA Rules ("the Rules"), this
‘Agreement and applicable law. The Merchant agrees to comply with and be bound by "the Rules". MERCHANT agrees to comply with applicable state and federal law or regulation and
- Merchant warrants that it will not transmit any Entry that violates the laws of the United States, including, without limitation, regulations of the Office of Foreign Asset Control (OFAC).
20. DATA RETENTION. MERCHANT shall retain all records related to authorization, including all sales and credit receipts and. authorizations for a period of na less than two years following the
date ofthe transaction; or two years from authorization revocation if applicable, Accoiding to Paya-BFT’S current Paya-EFT policies, MERCHANT shall,:as applicable, stamp or mark "ACH
processéd” aiid hand the check back to the check writer and retain for a péried of 2 yeats all ACH Debits received from customers. If cheek is lianded back to-check writet, ACH
authorization form is handed back to consumery-or-recorded oral-aiithorization is lost éien MERCHANT acknowledges that Paya-E¥T will not be able to provide any chéck collection
-seryices beyond the third electronic presentment of the check. Faihire to provide the signed smthorization receipt, form, or recorded oral authorization to Pa; FT -will result in
_ cessation of collection efforts, and Paya-EFT will be entitled to immediately debit MERCHANT'S account for any previously processed and returned transactions, leo?
21,. ADDITIONAL MERCHANT REPRESENTATIONS,-MERCHANT agrees to permit Paya-EFT to audit MERCHANT upon reasonable tiotice, MERCHANT agrees that any putstanding .
amount(s) owed to Paya-EFT shalf be subject té'a 1.5% finance charge monthly, Any outstanding sums will-be sent to an outside collection agency and charged the maximum amount of civil,
+... “legal, and collection fees/charges as is allowed by. law. MERCHANT will not disclosé and will keep confidential the terms and Conditions of this Agreement.” we tes
22, --ADDITIONAL PAYA-EFT RESPONSIBILITIES, Paya-EFT will accept, as applicable, exitries via check reader hardwate, MERCHANT’s payment gateway; double sided check images from a.
~- *Paya-EFT approved check imager/software vehicle, ACH Debit software, and Checks-By-Phone Gateway on a 24-hour por day basis. Paya-EFT is only responsible for processing entries that” --
have atrived at its premises in a proper format and ona timely basis. Paya-EFT will use inforniation provided by MERCHANT to originate its entries in the applicable Remote Check Deposit
_ (Cheek 21 Plus) network or ACH; MERCHANT understands and agrées that Paya-EFT may iéjéct MERCHANT'S entries for any reason pefmitted in-this Agieément and/or if acceptance of such
- -: entry would cause Paya-EFT to-potentially violate any federal, ‘state or local law, rule statute, or regulation, including’ without limitation any Federal Reserve ot other regulatory risk control
_ program. At MERCHANT'’s written request, Paya-EFT. will make réagonable efforts to reverse or delete an entry, but will under no circumstance be liable for the faihire to comply ‘with such
request, : et : : : Mees uF De eb. a
23, LIMITATION OF LIABILITY AND MERCHANT'S WAIVER OF DAMAGES. Paya-EFT shall be respoitsible: for petfoimiarice of the ACH and Remote Chiéék Deposit (Check 21 Plus)
services as @ third-party providerin accordance with the terms of this Agreement, Paya-EFT shall not be responsible for ény-other person’s or entity’s errors, facts, omissions, failures to act,
negligence.or intentional conduot, including without limitation entities such as Paya-EFT’s communication carrier or clearing houses, and no such entity shall be deemed to be a representative or
an agent. of Paya-EFT, IN NO EVENT SHALL PAYA-EFT BE LIABLE-TO MERCHANT FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES
WHICH MERCHANT OR ITS CUSTOMERS; AFFILIATES, PARENT COMPANIES, ASSOCIATES, AGENTS, OFFICERS, DIRECTORS OR EMPLOYEES MAY INCUR OR
SUFFER IN CONNECTION WITH THIS AGREEMENT, INCLUDING LOSS OR DAMAGE FROM SUBSEQUENT. WRONGFUL DISHONOR RESULTING FROM PAYA-
EFT’S ACTS OR OMISSIONS PURSUANT TO THIS AGREEMENT. PAYA-EFT’S LIMIT OF LIABILITY TO MERCHANT OR ANY THIRD PARTY FOR ANY.CAUSE.OF
ACTION ‘WHATSOEVER IS limited to the'proportionate extent of Merchant’s négligence or other breach of duty, and limited by the fees that Paya-HFT has received for the'peior three (3)
months from Merchant. : - - : - . bone Bein pected ae “ok
24, FORCE MAJEURE, Paya-EFT shall not be fesponsible for delays; nonperformance, damages, lost profits or other losses caused directly or indirectly by any Act of God, including, without ~
- limitation; fires; earthquakes, tornadoes, hurricanes, wars; labor disputes, communication failures, legal constraints, power outages, data transmission loss or-failure; incorrect data transmission or
any other event outside the direct control of Paya-EFT. : -
25, CONFIDENTIALITY, Bach party acknowledges that all other materials and information disclosed to the other party ("Recipient") in connection with the performance of this Agreement,
including any trade secret, process, technique, algorithm, computer program (source and object code), design, drawing, formula, business plan or test data relating to any research project, work in
process, future development, engineering, marketing, servicing, financing, strategic partnership or personnel matter consist of confidential and proprictary data. Zach Recipient will hold those
materials and that information in strict confidense, and will restrict its use of those materials and that information to the purposes anticipated in this Agreement. If the law or legal process
requires Recipient to disclose confidential and proprietary data, Recipient will notify the disclosing party of the request. Theveafter the disclosing party may seek a protective order or waive the
confidentiality requirements of this Agreement, provided that Recipient may only disclose the aninimum amount of information necessary to comply with the requirement, Recipient will not be
obligated to hold confidential any information from the disclosing party which (a) is or becomes publicly known through no act or omission of the Recipient, (b) is received from any person or
entity who, to the best of Recipient's knowledge, or Recipient's reason to know, has no duty of confidentiality to the disclosing party, (c) was already known to Recipient prior to the disclosure,
and that knowledge was evidenced in wiiting prior to the date of the other party's disclosure, or (d) is developed by the Recipient without using any of the disclosing party's information,
MERCHANT fiuther warrants and agrees that it shall ot sell, purchase, provide, or exchange checking account information in the form of sales drafts, mailing lists, tapes, or any other media
obtuiried by reason of a transaction or otherwise, to any third party other than to Paya-EFT, MERCHANT'S agents approved by Paya-EFT for the purpose of assisting MERCHANT in its
business to Paya-EFT, the financial institution named on the check, or pursuant to lawful government demand without the account holder’s oxplicit written consent. All media containing
checking account numbers must be stored in an area limited to selected personnel until discarding and nmust be destroyed prior to or in conection with discarding in a manner that will render the
data unreadable. MERCHANT will not disclose and will keep confidential the terms and conditions of this Agreement. oe
26. INDEMNIFICATION. MERCHANT agrees to indemnify Paya-EF'T for any cost, expense, and damage, lost profit and/or attomeys’ fees in connection with (i) any breach of its obligations or
representations in this Agreement; (ji) a dispute between MERCHANT and a consumer regarding the action or inaction of MERCHANT; (iii) any dispute between MERCHANT and a
MERCHANT Customer with respect to the alleged or actual failure by MERCHANT to process a transaction as requested by such customer or to MERCHANT?’s failure to provide data security,
and (iv) MERCHANT's failure to comply with any of the provisions of this Agreement and applicable laws, Rules and/or regulations. As set forth in Section 22, in no event shall Paya-EFT’s
Kability to MERCHANT for any matter exceed the total amount of three (3) months of fees paid by MERCHANT under this Agreement.
27. SECURITY INTEREST. (a) This Agreement is a security agreement under the Uniform Commercial Code, MERCHANT grants to Paya-EFT a security interest in and lien upon: (i) the account
designated by MERCHANT for settlement and all funds at any time in such account, whatever the source of such funds, (ii) the Charge-back and Retum Reserve Account (as defined above) and
all funds at any time in the Chargeback and Return Reserve Account, whatever the source of such funds, (iii) all MERCHANT’ rights relating to this Agreement including, without limitation, all
rights to receive auy payments or credits under this Agreement, and (iv) all MERCHANT deposit accounts now owned or hereafter acquired and the proceeds of all of the foregoing (collectively,
the “Secured Assets”), Upon request of Paya-EFT, MERCHANT will execute one or more financing statements or other documents to evidence this security interest, MERCHANT authorizes
Paya- EFT and appoints Paya-EFT its attorney in fact to sign its name to any financing statement used for the perfection of any security interest or lien granted in this Agreement. These security
interests and liens will secure all of MERCHANT’s obligations under this Agreement and any other agreements between MERCHANT and Paya-EFT including, but not limited to,
MERCHANT’s obligation to pay any amounts due to Paya-EFT. With respect to such security interests and liens, Paya-EFT will have all rights afforded under the Uniform Commercial Code,
REVO05152023 Page
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4143-1053-4164.4
37048-2 PLEASE NOTE: The complete Merchant Agreement includes these Terms and Conditions and the Application on three (3) additional pages.