The Securely Payment Gateway Service Agreement (the “Agreement”) is a legally binding contract between you and/or your company (“Merchant”) and Xero Allied Business Advantage, LLC d/b/a Securely (“Securely”) as of the Effective Date. The Agreement sets out the terms and conditions under which Merchant may utilize the Transaction Services. Merchant should read this Agreement carefully.

Words and phrases with initial letters capitalized and not otherwise defined in this Agreement shall have the meaning set forth in Section 15.

1.        Merchant’s Application and Related Matters; Express Authorizations to Securely.

1.1               Application; Acceptance of Agreement. Merchant acknowledges that Merchant accepts the Agreement by making application for Securely services using the application in the form required by Securely from time to time (“Application”), by signing the Agreement or by clicking on the “I AGREE” button, or a similar means or affirmation of acceptance as allowed by Securely, or by using or accessing the Transaction Services through any means allowed by Securely, including, without limitation, via a computer or similar device or by a mobile application. By accepting the Agreement, Merchant covenants and agrees that: (a) it has reviewed and understands the Agreement; (b) it agrees to be legally bound by, and that it will at all times comply with all covenants, terms, conditions and agreements contained in the Agreement that are applicable to Merchant; and (c) its use of the Transaction Services and any related products or services will be governed by this Agreement. If Merchant does not agree or is not willing to be bound by the terms and conditions of this Agreement, Merchant should not accept the Agreement in any way, whether by signing the Agreement or clicking on the “I AGREE” button or any other means and Merchant should not attempt to obtain or use the Transaction Services.

1.2              Capacity and Related Matters. By accepting the terms and conditions of this Agreement, Merchant represents and warrants to Securely that (a) the person executing this Agreement is 18 years of age or older and is authorized to execute and enter into this Agreement on behalf of Merchant and to make, on behalf of Merchant, all covenants, warranties and representations made by Merchant in this Agreement, together with all authorizations granted, allowed, extended or provided by Merchant to Securely set forth in this Agreement (b) all information Merchant has provided, or will provide to Securely at any time is complete, true and correct in all respects, (c) if any information provided by Merchant to Securely at any time becomes inaccurate or incomplete in any way, Merchant promptly will provide Securely the corrected information in the manner required by Securely, (d) Merchant is solely responsible for the accuracy and completeness of all information at any time provided to Securely pursuant to this Section 1 or any other Section in this Agreement, and that Securely shall be entitled to rely on all such information, covenants, authorizations without the need to verify any of the same, although Securely may elect to do so at any time in its discretion, (e) Merchant has the legal capacity, power and authority to enter into and accept the terms and conditions of this Agreement, (f) that by accepting and entering into this Agreement in any manner provided herein, Merchant intends to and agrees to be bound by all of its covenants and terms, conditions and other provision of this Agreement, including without limitation all authorizations granted, allowed, extended or provided by Merchant to Securely and (g) Merchant understands and agrees that Securely has reserved the right, in its sole discretion for any reason or for no reason, to accept or reject Merchant’s Application or registration for Transaction Services and access to, or use of, the Transaction Services or having accepted the same, the right, in its sole discretion, to refuse to provide Transaction Services to Merchant at any time.

1.3              Two Tag System. Merchant acknowledges that the Securely payment system offers its users two prices when purchasing Merchant’s goods/services. One of the prices is for use of cash, check, Securely Digital Cash or other non-payment card methods and the other price is for the use of a payment card such as but not limited to credit card or debit card. The PAYMENT CARD PRICE IS MORE than a cash, check and Securely Digital Cash price. Merchant acknowledges that the Securely payment system does not use a surcharge. Merchant agrees to never associate the use of surcharge with the Securely payment system.

2.       Securely Undertakings.

2.1              Transaction Services. Subject to the terms, conditions and other provisions of this Agreement, including without limitation, Merchant’s obligation to timely and correctly pay all applicable fees and to otherwise comply with this Agreement, Securely agrees to provide to Merchant the Transaction Services in accordance with the terms, conditions and other provisions of this Agreement at the rates set forth in the Fee Schedule.

2.2             Merchant Service. Subject to the terms, conditions and other provisions of this Agreement, including without limitation Merchant then being current in payment of all fees owing to Securely and is otherwise not in breach of or default in any provisions of this Agreement, Securely will provide Merchant the Transaction Services set forth in the Contact Us section of the Securely website at the following URL [http://www.securely.io/help/].

3.       Merchant’s Undertakings.

3.1       ID and Password. In furtherance of the Application, Merchant must select an ID and password to enable Merchant to access Merchant’s payment gateway account and use the Transaction Services. Merchant covenants and represents that it will restrict access to such ID, password, and each Account to Merchant’s authorized employees and agents as may be reasonably necessary consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using each Account is authorized to do so and is aware of and complies with all requirements and provisions of this Agreement applicable to access to and use of Merchant’s payment gateway account and all Transaction Services. Merchant is solely responsible for maintaining adequate security and control of any and all IDs, passwords, or any other codes applicable to Merchant’s access to and use of Merchant’s payment gateway account, each Account and all Transaction Services. Merchant shall comply with all Securely requirements and notices regarding the security of Merchant’s ID, its Account, the password and payment gateway account(s). Nothing in this Section 3.1 shall be construed to limit any other responsibility or obligation of Merchant as set forth in this Agreement, including without limitation, all of Merchant’s other responsibilities and obligations contained in Section 3.

3.2      Relationship to Merchant Service Providers. Merchant may have enrolled in the Transaction Services via a Merchant Service Provider. In addition to any other agreement Merchant may have with the Merchant Service Provider, Merchant acknowledges and agrees that this Agreement shall apply to and govern Merchant’s access to and use of each Account and Securely’s performance of the Transaction Services, whether or not provided in conjunction with or through a Merchant Service Provider. In accepting or using the card network or other means of any Payment Network in respect of any Transaction Services for the purchase of Merchant’s goods and services, Merchant shall at all times comply with the requirements of this Agreement and all Payment Network Rules. Merchant expressly acknowledges and agrees that Securely may share with any Processor, whether or not an Affiliate of Securely and any Merchant Service Provider, all information provided by Merchant in the Application or otherwise known to, or provided to, or obtained by, Securely at any time that may pertain to Merchant or to any Merchant Account.

3.3      Compliance. Whenever accessing or using any Merchant Account, any Transaction Services or otherwise exercising its rights and obligations under this Agreement (including, without limitation, any those related to individual privacy), Merchant , at Merchant’s own expense, will comply with all federal, state and local laws, policies, rules, regulations and orders of any governmental authority or regulatory body, including without limitation, any department or agency thereof (such as the Federal Trade Commission) having jurisdiction over any such matter (collectively, “law or “laws”) applicable to Merchant, its Account(s), this Agreement, End User data, any Transaction, the Transaction Services, the Payment Network, the Payment Network Rules, and the Services Documentation. Securely reserves the right to amend, modify or change the Services Documentation at any time, notice of which shall be provided to Merchant in the manner required by this Agreement.

3.4     Merchant Responsibility for Acts of Others. Merchant agrees that Merchant, and not Securely or any Processor that is an Affiliate of Securely, is responsible for any advice from, acts of, as well as omissions, acts of fraud or acts of misconduct by Merchant, any Processor that is not an Affiliate of Securely, or any Merchant Service Provider, including its or their respective employees, consultants, advisors, contractors, agents, officer, directors (collectively, “Merchant Representative(s)”). Merchant agrees that Merchant, and not Securely or any Processor that is an Affiliate of Securely, also is responsible for the prohibited use, unauthorized use or misuse by Merchant and any Merchant Representative(s) of any Merchant’s devices and equipment, its Account(s), any Transactions or Transaction Services, the Securely payment gateway, the Domains, the Merchant Interface, the Payment Network, the API, any Mobile Payment Processing Software, any payment terminals, any NFC devices, and the Intellectual Property of Securely or any Processor, whether or not an Affiliate of Securely, or that of any Merchant Service Provider in any manner or for any purpose whatsoever, including without limitation, the use of any of the same to: (1) engage in illegal or fraudulent activities; (2) benefit any country, organization, entity, or person embargoed or blocked by any government, including those on the sanctions lists maintained by the U.S. Office of Foreign Asset Control (OFAC); (3) infringe on Securely’s or that of any Processor, whether or not an Affiliate of Securely, or any third-party’s Intellectual Property or rights, trade secrets or privacy rights; (4) facilitate any form of corruption, damage, disruption, surreptitious interception, or unauthorized access to any computer program, data, information or system, any Transaction or Transaction Services; (5) engage in any purpose or activity or in any manner that, in any such case, are prohibited by, or that would not comply with, this Agreement or any applicable law; or (6) to cause Securely or any Processor that is an Affiliate of Securely, to be, or become, subject to any investigation, prosecution or similar action or judicial, administrative, arbitration or other proceeding to which Securely or any Processor that is an Affiliate of Securely, is or may be made a party. Without limitation to any other provision of this Agreement, Merchant acknowledges and agrees that it shall be responsible to Securely and any Processor that is an Affiliate of Securely, and any Merchant Service Provider and solely liable for all loss and damages to any or all of them. Such loss or damages shall include without limitation, including without limitation, all chargebacks or other Reversal Fees, claims, fees, fines, penalties and other liability of any nature to the extent directly or indirectly caused by or arising out of any such prohibited use, unauthorized use or misuse by Merchant and any Merchant Representative(s) or any other breach of this Agreement by Merchant or any Merchant Representative(s).

3.5      Securely’s Right to Terminate and Suspend; Sharing of Information. Without limitation to the generality of any other right or reservation of Securely set forth in this Agreement, Merchant acknowledges and agrees that Securely reserves the right to immediately, and without prior notice to Merchant or penalty to Securely, suspend or cancel any Merchant Account if Securely or has received information or has reason to believe, as determined in its sole discretion, that (1) any Merchant Account has been or is being used in a manner Securely determines to subject Securely or any Affiliate of Securely to an unacceptable level of risk; (2) any Merchant Account has been or is being used for any illegal or fraudulent purpose or to otherwise engage in any other activity that is prohibited by this Agreement; (3) or that Merchant or any Merchant Representative may have breached this Agreement, and Merchant consents to such action. Merchant understands that Securely may share all information provided by Merchant in the Application or otherwise provided to, obtained by Securely or known to Securely at any time pertaining to Merchant, any Merchant Account, any Transaction or any Transaction Services with any government or regulatory authority, any other Financial Institution or law enforcement agency that Securely may deem, at any time, to be necessary or convenient to fulfill its obligation to comply with applicable law, and Merchant consents to such activity.

3.6      Electronic and Paperless Notices and Disclosures. Merchant consents to receiving electronically rather than in paper form all written notices, disclosures and other documents (“Document(s)”) that are to be provided by Securely to Merchant under this Agreement. Securely will notify Merchant that a Document is available at Securely’s web site with a link to that specific page of the web site containing the Document. Merchant agrees that such notification may be sent to Merchant at the e-mail address last provided to Securely, whether as part of the Application or otherwise. By affirmatively checking the box to consent to receive paperless delivery of IRS Notices on the Application, if applicable. Merchant represents that it has reviewed and received the Consent to Paperless Delivery of IRS Notices, located  at https://merchant.securely.us and Merchant consents and agrees to receive IRS notifications by paperless delivery. Merchant understands and acknowledges that access to the Internet and e- mail may be required for Merchant to access Documents electronically or by paperless delivery, and Merchant confirms that Merchant has such access. Merchant understands that there are costs related to accessing Documents electronically or by paperless delivery, and Merchant agrees that Merchant is responsible for these related access costs. At any time, and without giving Merchant advance notice, Securely may elect not to send a Document electronically or by paperless delivery, in which case a paper copy of the Document will be sent to Merchant at Merchant’s last known address, as provided by Merchant, or such Document shall otherwise be provided as provided for in this Agreement.

3.7      Additional Solutions and Services. In the event that Merchant enrolls in and/or utilizes any Additional Services, then, in addition to the provisions of this Agreement, the terms and conditions contained in Appendix A, Additional Services Terms and Conditions also shall apply as applicable.

3.8      Third-Party Products and Services. Merchant’s use of third-party products and services may be governed by and subject to separate third-party product, service, software, and/or license or other agreement. In such circumstances, Merchant understands and agrees that Securely is not a party to such third-party agreements and that Securely does not warrant or guarantee that any such third-party product or service will comply with this Agreement or that Securely’s performance of the Transaction Services will comply with any such agreements. In no event shall the provisions of any such agreements or control or prevail over those contained in this Agreement, and Merchant agrees that to the fullest extent permitted by applicable law, Securely shall not be liable to Merchant for Merchant’s permitted or unauthorized use or misuse use of third-party products and services in respect of any Transaction Services.

3.9      Bankruptcy. Merchant will notify Securely immediately if any bankruptcy, insolvency or similar petition is filed by or against Merchant. Merchant acknowledges and agrees that this Agreement constitutes an executory contract to extend financial accommodations as defined in 11 U.S.C. §365(c)(2) and that the Agreement cannot be assumed or assigned in the event of bankruptcy. Merchant and Securely agree that immediately if any bankruptcy, insolvency or similar petition is filed by or against Merchant, Securely shall be entitled to immediately suspend further performance under this Agreement. Merchant covenants and agrees that, to the fullest extent permitted by applicable law, in the event of the filing of a bankruptcy proceeding, Merchant must establish a reserve or similar account or maintain a previously established and then current reserve or similar account in amounts reasonably required by Securely. Securely will have the right to setoff against any such account for any and all obligations that Merchant may owe Securely under this Agreement, without regard as to whether the obligations relate to Transactions initiated or created before or after the filing of the bankruptcy petition.

3.10   Change in Name or Business. Merchant will give Securely at least thirty (30) days’ prior written notice before any change in Merchant’s name or location, any change in ownership or management of Merchant’s business, any sale, assignment, rental, lease or transfer of ownership of any location that accepts Payment Networks, or any change in information concerning Merchant in the Application or registration, as the same may have been updated or revised at any time, and any material change in the type or nature of the business carried out by Merchant or otherwise required to be provided to Securely by application of any provision in this Agreement.

3.11     Disputed Fees. Securely and its Affiliates shall be entitled to presume that any amounts Securely and any Merchant Service Provider pays to or debits from Merchant are correct unless Merchant disputes these by providing Securely written notice not later than forty-five (45) days after the date of the applicable statement containing any disputed payments or debits. MERCHANT AGREES THAT SECURELY SHALL NOT BE LIABLE FOR ANY DISPUTED PAYMENTS OR DEBITS, INCLUDING ANY ALLEGEDLY IMPROPER FEE(S), UNDERPAYMENTS, OR BILLING ERRORS, THAT ARE NOT REPORTED TO SECURELY IN WRITING WITHIN SUCH FORTY-FIVE (45) DAY PERIOD.

3.12    Bank Transfer Authorization. Merchant authorizes Securely and its agents or designated representatives to initiate debit and credit entries and adjustments to Merchant’s Account through the ACH settlement process for amounts due under the Agreement. This authorization will remain in full force and effect until termination of the Agreement and the full and final payment of all obligations of Merchant due under the Agreement. Merchant acknowledges and agrees that neither Securely nor its Affiliates will be liable for any delays in receipt of funds, any failure by Merchant to receive funds, or errors in debit or credit entries caused by Merchant or any third parties, including but not limited to any Payment Network or any other Financial Institution. Without limitation to any other remedy that Securely may have under or in respect of this Agreement, Securely shall be entitled to have and recover all fees or other amounts owed by Merchant to Securely in connection with any Transactions Services or other Services provided for which there are insufficient funds in any Merchant Account or other source for payment therefor, hereby authorizes Securely to charge, use or otherwise recover such amounts from either Merchant’s Securely Balance or their attached Financial Institution account. This authority is to remain in full force and effect until Securely has received written notification from Merchant of its request for termination in such time as to afford Securely a commercially reasonable opportunity to acknowledge and respond to the request. If at any time there is a change to Merchant’s Financial Institution account, credit card number and/or federal income tax ID number, Merchant shall promptly update its account information in the Merchant Interface.

3.13   Additional Merchant Responsibilities. Except where Securely and Merchant may have otherwise expressly agree in this Agreement, and without limitation to the generality of any other provision of this Agreement, Merchant maintains the direct relationship with its Merchants and users (“Merchant’s Users”) and between Securely and Merchant, Merchant is solely responsible for: (i) acquiring appropriate consent to submit all Transactions and Transaction Services, whether through use of the API on their behalf or otherwise; (ii) providing confirmation or receipts to Merchant’s Users for each Transaction; (iii) verifying identities of Merchant’s Users; and (iv) determining the eligibility and authority of Merchant and Merchant’s Users to complete Transactions. All Transactions, whether or not authorized may be subject to a dispute. Without limitation to the generality of any other provision of this Agreement, Merchant also agrees that Securely is not responsible for or liable to you for authorized and completed Transactions that are later the subject of a dispute, refund, or Reversal Fee, are submitted without authorization or in error, or violate any applicable law. Merchant also agrees to be responsible to Securely for all disputes, refunds, Reversal Fees, returns, or fines regardless of the reason or timing, and Securely may decline to act upon a refund instruction, or delay execution of the instruction, if: (i) it would cause any Merchant Account balance to become negative; (ii) Merchant is the subject of bankruptcy proceedings; or (iii) where Securely believes that there is a risk that you will not meet your liabilities under this Agreement (including, without limitation, with respect to a Transaction that is the subject of the refund instruction).

3.14   Payment Processing Services. If Merchant uses any Payment Processing Services, then, without limitation to the generality of any other provision of this Agreement, Merchant acknowledges and hereby authorizes Securely to report the total amount of payments you receive each calendar year as required by the Internal Revenue Service. Securely also may, but is not obliged to, electronically send Merchant tax-related information (including, when Merchant has provided its tax identification number or Employer Identification Number (“EIN”) or a Form 1099- K).

3.15    Reports from Merchant Information. Without limitation to the generality of any other provision of this Agreement, Merchant authorizes Securely to release and use information collected in connection with Securely’s performance of the Transaction Services to third parties that provide services to Securely or Merchant or to any third-party that requests and has a reason to know such information, including without limitation to any Payment Network, and any third- party having regulatory control over any party

3.16   Merchant Fees. Merchant acknowledges that Securely will be charging and collecting a one-time direct cost to each consumer/End User using the Securely platform an initial Transaction/Transactions services fee in the amount of $0.99, plus, if an End User elects at any time to become a verified consumer/End User, a one-time additional fee of $2.00. In addition, Securely may charge additional fees for Implementation and Integration, a monthly SaaS Fee, and Terminal Fees, which shall be described in detail in an Order Form or Statement of Work signed by the Merchant. Securely reserves the right to charge additional fees for each Verified Consumer, a New Consumer FI Account Fee, a Digital Cash^TM Fee (each, not to exceed $500 in a one-month period), and a Chargeback Fee, a Retrieval Fee, and/or a Late Fee (each, not to exceed $10 in a one-month period).

4.     Data Collection, Privacy and Security.

4.1       Merchant Data Collection, Privacy and Security.

4.1.1   Between Securely and Merchant, Merchant agrees that Merchant is solely responsible for the security of data residing on servers owned, operated, or controlled by Merchant or a third-party Processor designated by Merchant (e.g., a Web hosting company, processor, or other service provider or processor). Merchant shall comply with all applicable laws governing or applying to the security, privacy, collection, retention, and use by Merchant of End User data, including, without limitation, financial information, card account numbers, and all other personally identifiable End User information. Merchant agrees to provide notice to End Users on Merchant’s website that discloses how and why personal and financial information is collected and used, which shall include any uses governed by this Agreement. Merchant shall inform End User and any Merchant Service Provider of their regulatory obligations with respect to personal data, payment security, and PCI DSS compliance. Each Party and any of its Affiliates with access to payment data shall be responsible for implementing PCI DSS-compliant security measures and shall take reasonable best efforts to ensure compliance with industry security standards for any End User data or for the security, privacy, collection, retention, and use of any End User data by Merchant. Liability for any breach or unauthorized release or access shall be apportioned based on a root cause analysis identifying the responsible party. Costs for security audits shall be similarly apportioned, with the responsible party bearing the full cost. Securely does not store sensitive End User data; therefore, liability will generally arise either from Securely’s partners or from Merchant’s failure to adhere to security best practices (e.g., improper handling of cardholder data, sharing of login credentials, or other preventable security lapses).

4.1.2  Merchant will comply with all then-current obligations and security measures, as applicable, required by applicable law and those required by any Payment Network Rules associated with the collection, security, dissemination, and destruction of End-User and Transaction data, including without limitation the Payment Card Industry Data Security Standard (“PCI”), which for all purposes shall be deemed under this Agreement to be included in all Payment Network Rules, whether or not explicitly stated. Without limitation to the generality of any other provision in this Agreement, including without limitation in section 4.1(a), Merchant acknowledges and agrees that Merchant is responsible for the security of End User cardholder data while in Merchant’s possession. Merchant warrants to Securely that Merchant has taken such precautions as are necessary to ensure that Merchant’s computer and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that Merchant’s system is breached and an unauthorized third-party has access to or has accessed End User data or Transaction data, Merchant shall notify Securely promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future. Costs for security audits related to a breach shall be apportioned based on a root cause analysis, ensuring that the party responsible for the breach bears the associated costs. Securely and Merchant, Merchant agrees that Merchant is solely responsible for the security of data residing on servers owned, operated or controlled by Merchant or a third- party Processor designated by Merchant (e.g., a Web hosting company, processor or other service provider or processor). Merchant shall comply with all applicable law governing or applying to the security, privacy, collection, retention and use by Merchant of End User data, including, without limitation, financial information, card account numbers, and all other personally identifiable End User information. Merchant agrees to provide notice to End Users on Merchant’s website that discloses how and why personal and financial information is collected and used, which shall include any uses governed by this Agreement. Merchant shall inform End User and any Merchant Service Provider that neither Securely nor any of its Affiliates is responsible will be responsible for any End User data or for the security, privacy, collection, retention and use of any End User data by Merchant or the breach of or permitted or unauthorized release or access thereto under any circumstances, regardless of cause.

4.1.3  Merchant will comply with all then-current obligations and security measures, as applicable, required by applicable law together in addition to those required by any Payment Network Rules associated with the collection, security, dissemination and destruction of End-User and Transaction data, including without limitation the Payment Card Industry Data Security Standard (“PCI”), which for all purposes shall be deemed under this Agreement to be included in all Payment Network Rules, whether or not actual so contained, and any reference in this Agreement Payment Network Rules shall be deemed to include PCI. Without limitation to the generality of any other provision in this Agreement, including without limitation in section 4.1(a), Merchant acknowledges and agrees that Merchant is responsible for the security of End User cardholder data while in Merchant’s possession. Merchant warrants to Securely that Merchant has taken such precautions as are necessary to ensure that Merchant’s computer and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that Merchant’s system is breached and an unauthorized third-party has access to or has accessed End User data or Transaction data, Merchant shall notify Securely promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future. Without limitation to the generality of any other indemnity or other provision in this Agreement, Merchant hereby agrees to defend indemnify and Securely and its Affiliates harmless from and against any loss or liability of Securely or Affiliates to either of them or to any End User in the event of any such breach at any time.

4.1.4  Without limitation to the generality of any other provision in this Agreement, Merchant covenants that it will comply with all Securely security protocols and security advisories in effect while this Agreement is in effect between Merchant and Securely, and, as between Merchant and Securely, Merchant agrees that it is solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by Securely associated with Merchant’s Account and verifying that all corresponding funds are accurately processed. Merchant acknowledges and agrees that Securely shall not be liable to Merchant or End User or any other third-party for any improperly processed or unauthorized Transactions or illegal or fraudulent access to any Merchant Account, End-User or Transaction data. Merchant acknowledges and agrees that Securely’s liability for improperly processed or unauthorized Transactions is limited to that solely attributable to the negligence of Securely and by the provisions of Section 12 and Section 13.

4.2      Securely Data Collection, Privacy and Security. Securely will collect, retain, and disclose information and data collected from Merchant and End Users in accordance with the Services Documentation and the Privacy Policy. In addition, Securely, its subsidiaries, Merchant Service Providers, partners, suppliers and/or their agents/contractors may transfer data amongst themselves as necessary for the purpose of the provision and management of the Transaction Services. Securely may further transfer any such data: (i) to third parties assisting Securely in evaluating Merchant’s eligibility for, provision of, administration and management of the Transaction Services; (ii) with non-affiliated entities that assist Securely in providing products and services that Merchant has requested; (iii) with companies that provide support services to Securely or with which Securely has agreements to provide marketing services on its behalf; or (iv) as otherwise permitted by law or Securely’s privacy and data use policies, as amended from time to time. While Securely uses commercially reasonable efforts to safeguard data, Securely does not warrant that End-User data and Transaction data will be transported without unauthorized interception or modification or that data will not be accessed or compromised by unauthorized third parties.

4.3     Data Retention. Merchant is solely responsible for compiling and retaining permanent records of all Transactions and End-User data for Merchant’s reference. Except as otherwise provided herein, at no time shall Securely have an obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or End-User data collected or processed by Securely.

5.     Fees; Taxes.

5.1       Securely Service Fees. Merchant shall pay to Securely the fees set forth in the Fee Schedule as outlined in the Securely Order Form, together with any fees related to any Additional Services. Notwithstanding anything to the contrary and if agreed upon by the parties, a Merchant Service Provider may charge, bill, and collect such fees from Merchant, in the amounts stated in and in accordance with the terms and conditions of the agreement between Merchant and such Merchant Service Provider. If Merchant’s relationship with a Merchant Service Provider expires or terminates and such Merchant Service Provider was billing Merchant for certain fees, Merchant agrees to pay Securely for any further use of the Transaction Services effective immediately upon any such expiration or termination in accordance with the terms herein.

5.2      Account Fees.

5.2.1  Late Payment Fee. If Merchant does not pay owing amounts on or before the fifteenth (15th) day of the month, Merchant will be subject to a late payment fee, in the amount set forth in the Fee Schedule. If Merchant has not paid all amounts due before the last day of the month in which they were due, Merchant’s ability to use the Transaction Services shall automatically be suspended at the end of the month.

5.2.2 Abandoned Account Fee. If Merchant’s account becomes an Abandoned Account with a balance due to Merchant, Merchant shall be assessed a monthly Abandoned Account Fee in the amount set forth in the Fee Schedule. In addition, all costs incurred by Securely in managing Merchant’s Abandoned Account, including costs associated with attempting to locate Merchant to deliver Merchant’s account balance or incurred with respect to escheating Merchant’s funds to the appropriate governmental agency will be deducted from Merchant’s account, as applicable.

5.3      Taxes. The fees described in the Fee Schedule or above are exclusive of all federal state or local taxes of any nature whatsoever, including without limitation, all governmental service or occupation fees or taxes, sales or use taxes, income taxes or other taxes on revenues, payroll taxes, transfer taxes or fees or levies, franchise taxes, gift taxes, capital stock taxes, personal property taxes, and any charges or assessments or directly or indirectly related to the conveyance, sale, or transfer. Merchant agrees to pay all applicable taxes other than tax assessed on Securely’s income. Merchant agrees that the payment of fees to Securely shall be made without deduction or withholding for any taxes. If Merchant is required to withhold any taxes, the amount paid by Merchant to Securely shall be increased to the extent necessary to yield to Securely (after withholding of such taxes) a net amount equal to the amount of fees and charges that Securely would have received had no such withholding been made. Merchant bears the ultimate responsibility for the proper payment of taxes applicable to Merchant’s sale of its products or services.

5.4      Opening/Closing Accounts. Should a Merchant fail to pay fees due under a its Account with Securely (“Original Account”) and subsequently opens another Securely Account (“Subsequent Account”) Securely reserves the right to bill the Subsequent Account for amounts due under the Original Account whether or not the Original Account was closed.

6.     Billing and Payment Terms.

6.1       Securely Bills Merchant.

6.1.1   Billing Terms. Billing shall begin on the Effective Date. Securely service fees are due and payable to Securely on a monthly basis, and the first payment shall be due on the second day of the month immediately following the billing effective date and as otherwise agreed to in writing on the Securely Order Form. Unless otherwise specified on a Securely Order Form, fees and payments for any subsequent time periods shall be due on the first day of the month. Payments will be made in U.S. Dollars. Notwithstanding anything to the contrary in this Agreement, Merchant shall initially and continue to maintain a depository account connected to the Merchant Application and any Original Account or Subsequent Account with Securely.

                                    i.         Merchants with U.S. Bank Accounts. Merchant hereby authorizes Securely to initiate transaction entries to Merchant’s depository account(s) provided in its Merchant Application or registration for all amounts due to Securely by Merchant under this Agreement. This authority is to remain in full force and effect until Securely has received written notification from Merchant of its request for termination in such time as to afford Securely a commercially reasonable opportunity to acknowledge and respond to the request.

                                   ii.         Merchant Account Changes. If Merchant’s depository account(s) number and/or federal income tax ID number changes, Merchant shall promptly update its account information in the Merchant Interface and take necessary steps to input a new depository account. Entries initiated to or from Merchant’s depository account will be in accordance with the rules of the National Automated Clearing House Association (NACHA) and/or any other regulatory body or agency having jurisdiction over the subject matter hereof.

                                 iii.         Merchants with Insufficient Funds in U.S. Bank Accounts. Merchant hereby authorizes Securely to charge Merchant’s credit card provided in its Merchant application for all amounts due to Securely from Merchant under this Agreement. This authority is to remain in full force and effect until Securely has received written notification from Merchant of its request for termination in such time as to afford Securely a commercially reasonable opportunity to acknowledge and respond to the request. If Merchant’s credit card number and/or federal income tax ID number changes, Merchant shall promptly update its account information in the Merchant Interface. Charges or credits to Merchant’s credit card account will be in accordance with Payment Network Rules and/or any other regulatory body or agency having jurisdiction over the subject matter hereof.

                                 iv.         Merchant Financial Information. Merchant will provide Securely with updated business and financial information concerning Merchant, including without limitation financial statements, tax returns, evidence of required licenses and other information and documents, that Securely may reasonably request from time to time. Without limitation to the preceding sentence, Merchant shall provide all documentation, information or other inspection rights requested by Securely or by any Payment Network’s regulators or auditors or otherwise to enable any of them to meet any requirements of applicable law. Without limiting the generality of the foregoing, Merchant understands and agrees that if, at any time Merchant is undergoing a forensic investigation, Merchant must notify Securely and fully cooperate with the investigation until it is completed.

6.1.2  Disputes. The parties shall promptly investigate any disputed fees under this Agreement. A dispute will not relieve Merchant of its payment obligations herein. If an event of dispute is resolved in Merchant’s favor, Securely will credit back to Merchant any applicable overpayments made by Merchant. All disputes must be made in good faith and in writing within forty-five (45) days of the billing statement date. Fees billed shall be deemed accepted where written objections are not lodged within such forty-five (45) day period.

6.2    Merchant Service Provider Bills Merchant. Notwithstanding anything contain in this Agreement to the contrary, including without limitation in Section 6.1, if Merchant is to be billed by a Merchant Service Provider for some or all of the fees associated with Transaction Services, Merchant shall pay the Merchant Service Provider in accordance with the terms mutually agreed upon between Merchant and such Merchant Service Provider.

6.3    Security Interest.

6.3.1  Merchant Grant of Security Interest. To secure Merchant’s performance of its obligations under this Agreement, and any other agreement with Securely Merchant hereby grants Securely and a security interest in each Transaction and its proceeds, provisional credits, the Settlement Account, the Reserve Account (without in any way suggesting that Merchant has ownership interest or property rights in the Reserve Account), and any other Merchant Account Merchant with a Payment Network or other Financial Institution, whether now existing or established in the future, and in the proceeds of all those accounts, any funds due to Merchant from Securely and any of Merchant’s property held by Securely or its Affiliates. To the fullest extent permitted by applicable law, Securely may enforce these security interests without notice or demand. The security interests granted under this Agreement will continue after the Agreement is terminated, until Merchant satisfies all its obligations to Securely. Furthermore, and with respect to any security interests granted herein, Securely will have all rights afforded under the Uniform Commercial Code, as the same may, from time to time, be in effect in the State of Texas; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of the security interests granted herein is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of Texas, then Securely will have all rights afforded under the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions relating to such attachment, perfection or priority of the security interests, as well as any other applicable law.

6.3.2  Perfection of Security Interest. Promptly upon request of Securely, Merchant will execute one or more financing statements or other documents to evidence the security interests granted to Securely under this Section 6.3. Merchant shall cooperate with Securely in obtaining any control agreement or similar agreement with a depository Financial Institution necessary to perfect the security interests granted herein. In addition, Merchant agrees that its signature on the Application or registration (in the form contemplated by this Agreement) will be considered Merchant’s signature agreeing to any control agreement as defined in Article 9 of the Uniform Commercial Code among Merchant, Securely, and any other Financial Institution under which Securely, Merchant and any other Financial Institution agree to the disposition of funds in the Merchant Accounts, any other applicable accounts contemplated hereby or any other deposit account with any such Financial Institution without further consent by Merchant.

6.3.3 Additional Remedies. To the extent that Securely has paid or may become liable for a chargeback or other Reversal, including without limitation any related Reversal fee or Transaction or other receipt or otherwise, Merchant will be obligated to reimburse and agrees to reimburse Securely for any sums Securely pays or for which Securely is or may be liable. Without limitation to any other right remedy or recourse to which Securely may be entitled under this Agreement or otherwise at law, if Merchant does not reimburse Securely, Securely will have all of the rights and remedies of any cardholder or Payment Network, including without limitation, those under 11 U.S.C. §507(a)(6). To the fullest extent permitted by applicable law, Securely may assert any claim on behalf of a cardholder individually or on behalf of all cardholders as a class.

6.3.4 Survival. The provisions of this Section 6.3 shall survive the cancelation, suspension or termination of any Merchant Account and this Agreement.

6.3.5 No Limitation. Nothing in this Section 6 shall be construed to limit the generality of any other provision in this Agreement.

7.     Term. Unless otherwise agreed to in writing by the Parties, this Agreement shall commence on the Effective Date and remain in full force and effect for a period of two (2) years, automatically renewing for successive two-year terms unless either Party provides ninety (90) days’ written notice of intent not to renew prior to the expiration of the then-current term.

8.     Termination and Suspension.

8.1       Termination by Merchant. Merchant may terminate this Agreement only in the event of Securely’s material breach of this Agreement, violation of applicable law, Securely’s insolvency or bankruptcy, or if regulatory or compliance changes make continued performance under this Agreement legally or operationally impossible, upon ninety (90) days’ prior written notice to Securely. Any monthly fee or billed amount will not be prorated. Notwithstanding any such termination by Merchant, Merchant shall be responsible for and shall pay all outstanding fees or other amounts incurred by Merchant prior to the effective date of termination and as may otherwise be provided for in this Agreement or the Securely Order Form, Change Order, or any applicable SOW, including without limitation, to the fullest extent permitted by applicable law, any fees related to chargebacks or other Reversal fees.

In addition, if Merchant terminates this Agreement or otherwise ceases to process transactions with Securely before the expiration of the agreed-upon term, Merchant shall reimburse Securely for any upfront or incurred costs associated with the relationship, including but not limited to the cost of terminals, custom integrations, special builds, or other implementation expenses incurred by Securely in reliance on the continuation of this Agreement. Securely shall provide a detailed itemization of such costs, and Merchant shall remit full payment within thirty (30) days of the termination effective date. Payment for such invoice will be due within thirty (30) days from receipt by the Merchant.

In the event Merchant is billed by a Merchant Service Provider in accordance with Section 6.2, and does not fulfill its responsibility therefor, Merchant hereby authorizes the Merchant Service Provider to terminate this Agreement on Merchant’s behalf, and Merchant hereby agrees that Securely may immediately and without verification rely upon any such termination notice from such Merchant Service Provider as if such termination were made by Merchant. Without limitation to the generality of any other provision in this Agreement, including without limitation Section 14.15 and notwithstanding anything to the contrary contained in this Agreement, no Merchant Account may be closed by Merchant until after the seven (7) day Transaction Assurance window.

8.2      Termination by Securely. Securely may terminate this Agreement and/or Merchant’s access to the Transaction Services, at any time and for any reason, with or without cause, upon thirty (30) days’ written notice.

8.3      Termination or Suspension of Merchant by a Merchant Service Provider. Without limitation to the generality of any other provision in this Agreement, if Securely is to be paid for Merchant’s access to and use of the Transaction Services by a Merchant Service Provider, and if Securely receives notice from such Merchant Service Provider that it has terminated or suspended its relationship with Merchant, Securely may suspend and/or terminate Merchant’s right to access and use the Transaction Services and/or this Agreement without notice and without liability or penalty. In addition, Securely may suspend and/or terminate the Transaction Services and/or this Agreement without notice and without liability upon receipt of notice from Merchant’s Processor or acquiring Financial Institution that Merchant is no longer entitled to send an authorization message, settlement message, or other message or payment data related to a card or digital cash transaction to Merchant’s Processor or Financial Institution.

8.4     Threatening Condition. Without limitation to the generality of any other provision in this Agreement, including without limitation Section 3.5, in the event that Securely reasonably believes that Merchant is in violation of its obligations hereunder, including, without limitation, selling products or services that violate any applicable law, or that Merchant’s conduct poses a threat to Securely’s systems, equipment, processes, or its Intellectual Property (the “Threatening Condition”) Securely may immediately suspend Merchant’s Account(s). In any event, Securely may terminate this Agreement if the Threatening Condition remains uncured more than thirty (30) calendar days after Merchant is notified of the Threatening Condition.

9.     Intellectual Property.

9.1       Securely. The parties agree that Securely owns and retains all right, title and interest in and to the Securely Trademarks, Transaction Services, copyrights and any related technology utilized under or in connection with this Agreement, including but not limited to all of its Intellectual Property together with all rights associated therewith. No title to or ownership of any of Securely’s Intellectual Property is granted or otherwise transferred to Merchant or any other entity or person under this Agreement. Merchant will not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets of any Intellectual Property for any Transaction Services or related technology. Any feature suggested by or built for the use of Merchant, including without limitation any related Intellectual Property will be exclusively owned by Securely.

9.2      API and Services Documentation License. Subject to the remaining terms of this Agreement, including without limitation Section 9, Securely hereby grants to Merchant and Merchant hereby accepts from Securely a personal, limited, non-exclusive, non- transferable license and right to the Securely API and accompanying Services Documentation for the following purposes:

                                    i.         install and use the Securely API on as many machines as reasonably necessary (which machines are and shall be maintained in facilities owned, occupied, or leased by Merchant) for purposes of using the same for Transaction Services, for the purpose of selling products and services to End-Users or for wholesale goods and services;

                                   ii.         use the accompanying Services Documentation solely for the purpose of using the Securely APIs and Transaction Services; and

                                  iii.         create a reasonable number of copies of the Securely API and Services Documentation, with all copyright notices intact, for archival purposes only.

9.3      Securely Trademarks License. Subject to the remaining terms of this Agreement, including without limitation Section 9, Securely hereby grants to Merchant a non-exclusive, royalty-free, fully-paid up right during the term of the Agreement, to use, reproduce, publish, perform and display the Securely Trademarks on Merchant’s website in connection with Merchant’s offering of payment options to End Users.

9.4     Merchant’s Marks License. Subject to the remaining terms of this Agreement, including without limitation Section 9, Merchant hereby grants to Securely a non-exclusive, royalty-free, fully-paid up right during the term of the Agreement, to use, reproduce, publish, perform and display Merchant’s Marks as necessary in connection with the performance of the Transaction Services and for marketing purposes.

9.5      Use of Trademarks. Securely and Merchant shall strictly comply with all standards with respect to the other party’s Trademarks contained herein or which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more Trademarks of the other party. All uses of the other party’s Trademarks shall inure to the benefit of the party owning such Trademark. Either party may update or change the list of Trademarks usable by the other party hereunder at any time by written notice to the other party. Notwithstanding anything contained in this Agreement to the contrary, Securely can revoke the Merchant use of its trademark(s).

9.6      Use the Appropriate ® or ™ Symbol. Merchant must reproduce any Securely Trademarks exactly as shown in Appendix A, including the exact reproduction of any proprietary markings or legends and including the appropriate ® or ™ symbol at the first and most prominent reference, or as soon as practicable thereafter.

9.7      Trademarks and Domain Registration. Except as otherwise expressly provided in this Agreement, including without limitation Section 9, Merchant shall not use, register or attempt to register any (a) Securely Trademarks or (b) marks or domain names that are confusingly similar to any of the Securely Trademarks or the Domain(s).

9.8      Trademark Restrictions. Merchant shall not (a) use the Securely Trademarks except as expressly authorized in this Agreement; (b) take any actions inconsistent with Securely’s ownership of the Securely Trademarks and any associated registrations, or attack the validity of the Securely Trademarks, its ownership thereof, or any of the terms of this Agreement; (c) use the Securely Trademarks in any manner that would indicate Merchant is using such Securely Trademarks other than as a licensee of Securely; nor (d) assist any third-party do any of the same.

9.9      Termination of Securely License. For avoidance of any doubt, all licenses and rights granted by Securely to Merchant in this Section 9, shall terminate immediately upon the termination of this Agreement by Securely, including during any period when any Merchant Account has been terminated, cancelled or suspended by Securely.

10.   Confidential Information; Data Security.

10.1    Confidentiality. Merchant will treat as confidential: (i) the terms of the Agreement; (ii) all information or data, of whatever nature, relating to Securely (including its operations, policies, procedures, accounts and personnel) accessed or used by or disclosed to Merchant in connection with this Agreement; (iii) Securely’s IRS W-9 form; and (iv) all information or data that is proprietary to a third-party (including Securely’s Merchants and contractors) and that Securely is obligated to treat as confidential, accessed or used by or disclosed to Merchant in connection with the Agreement (which, together with all other Confidential Information as defined in this Agreement is hereinafter individually and collectively referred to as “Confidential Information”). Merchant shall not use or disclose Confidential Information without Securely’s prior written consent. Merchant may only disclose Confidential Information to Merchant’s employees who have a need to know such information in connection with Merchant’s performance hereunder and who are bound to confidentiality restrictions no less restrictive than those herein. Merchant shall exercise at least the same degree of care to maintain the confidentiality of Confidential Information that it uses for its own similar information, but in no event less than a reasonable degree of care. The foregoing obligations shall not apply to any information that (x) is received from any third-party source that is properly authorized to disclose it without restriction, (y) is or becomes generally known to the public by publication or some other means other than a breach by Merchant or its employees of any agreement or confidentiality obligations, or (z) is required by law to be divulged, provided that the request is proper and the disclosure does not exceed that which is required. In the case of (z), Merchant will provide prior notice thereof and cooperate with Securely to limit disclosure. Upon Securely’s request, and upon termination or expiration of the Agreement, Merchant shall return or, only if requested by SECURELY, destroy all Confidential Information in its possession or control. Merchant acknowledges that a breach of this Section 5 may cause SECURELY irreparable injury and that SECURELY may have no adequate remedy at law. Accordingly, SECURELY may seek provisional or injunctive relief in addition to any other rights or remedies.

10.2   Transaction Receipts. Merchant will retain in a secure and confidential manner original or complete and legible copies of each transaction receipt, and each credit transaction receipt required to be provided to any End User, for such period as required by applicable law. Merchant shall render all materials containing End User account numbers unreadable prior to discarding. Merchant is responsible for ascertaining whether applicable law requires copies retained by Merchant to truncate card numbers and suppress expiration dates, and for complying with all such laws.

10.3   Storage. Merchant will store all transaction receipts and credit transaction receipts in an area limited to selected and authorized personnel, and when record-retention requirements have been met, Merchant will destroy the records so that the same are rendered unreadable.

10.4   Security. Merchant agrees and shall ensure that all Merchant Service Providers utilized by Merchant provide the same levels of security as those required of Merchant, and that such Merchant Servicer Provider transmit data in accordance with: (a) applicable required format(s) and requirements of law, Securely and any related Institution. Merchant must have a written contract between such Merchant Service Provider or between Merchant and the Merchant Service Provider that stipulates adherence to the provisions of such information security requirements. Merchant’s written contract with any such third-party must contain provisions obligating the third-party to comply with applicable law and with CISP and SDP and DISC and PCI-DSS, PA-DSS, PIN and PED security requirements if applicable, and all other card association requirements pertaining to confidentiality and security and integrity of any cardholder and card transaction data, with all rules prohibiting storage of certain card transaction data, and with all other applicable operating rules and the requirements of Securely and any related Financial Institution. Merchant will only allow Merchant Servicers or Agents to have access to cardholder data for the purposes that are authorized by the Operating Rules. Any fees or liability assessments from actual or alleged noncompliance will be the sole liability of the Merchant.

10.5   Loss or Theft. Merchant must immediately notify all applicable Financial Institutions and Securely of any suspected or confirmed loss or theft of materials or records that contain cardholder account numbers or card transaction information. In the event of a suspected or confirmed loss or theft Merchant shall provide immediate access to all facilities, systems, procedures, equipment, and documents as may be deemed appropriate by Securely and any related Financial Institution or their designated representatives, regulators or auditors for inspection, audit, and copying as deemed appropriate by such Financial Institution and Securely in their individual respective sole discretion. Merchant shall be responsible for all costs associated with such inspection, audit, and copying however such costs may occur.

10.6   Patriot Act Requirements. Federal regulations enacted pursuant to the USA PATRIOT Act and other applicable laws require Financial Institutions with which Securely has relationships to verify the identity of every person who seeks to open an account with a Financial Institution. As a result of Merchant’s status as an account holder with a Financial Institution, Merchant shall provide documentary verification of Merchant’s identity, such as a driver’s license or passport for an individual and certified copy of organization documents for an entity in manner acceptable to Securely and any related Financial Institution, each of whom reserve the right to verify Merchant’s identity through other non-documentary methods as it deems appropriate in its sole discretion. Securely and its related Financial Institution may retain a copy of any document it obtains to verify Merchant’s identity with the Financial Institution.

10.7    Merchant Limitations. Merchant will not: (a) provide cardholder account numbers, personal cardholder information or Transaction information to anyone except ISO, the card Associations, including without limitation NACHA or Merchant’s Merchant Servicers or agents for the purpose of assisting Merchant in completing a card Transaction or Transaction Services, or as specifically required by law; (b) retain or store card magnetic stripe, CVV, CVV2, CVC2 or CID data (including track data) subsequent to authorization for a Transaction or any Transaction or Transaction Services ; (c) sell, purchase, provide or exchange card account number information to any third party without the cardholder’s consent, or to any entity other than Merchant’s Merchant Servicers or agents, ISO, the card associations, including without limitation NACHA, or in response to valid legal process or subpoena; or (d) release any cardholder information over the telephone under any circumstances.

11.    Representations and Warranties; Disclaimers.

11.1      Mutual Warranties. Without limitation to any other representation or warranty made by Securely or Merchant in this Agreement or any disclaimer in respect thereof or any limitation of liability therefor, each party represents and warrants to the other that (a) it has all necessary right, power and ability to execute this Agreement and to perform its obligations therein; (b) no authorization or approval from any third-party is required in connection with such party’s execution, delivery or performance of this Agreement, (c) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms, (d) the party’s obligations under this Agreement do not violate any law, policy or regulation or breach any other agreement to which such party is bound; and (e) it has all right, title or interest, or valid license to use its respective Marks, and that its grant of rights associated therewith do not violate the intellectual property or other proprietary rights of any third-party.

11.2     Securely Limited Warranty. Without limitation to any other representation or warranty made by Securely or Merchant in this Agreement or any disclaimer in respect thereof or any limitation of liability therefor, Merchant acknowledges and agrees that (a) Securely does not warrant any of, or the performance of any of, any services in respect of any Transaction Services provided by any third-party, including without limitation, any Merchant Service Provider, Financial Institution or any third-party processor; (b) Securely will not accept responsibility and will not be responsible for errors, acts, or failure to act by Merchant or any other party, including but not limited to, any malfunctioning or defective equipment or software, or any default or other deficiency in services of or from Merchant, any Merchant Servicer Providers, Financial Institution, communication common carriers, Payment Networks or ACH or other clearinghouses through which transactions or Transaction Services may be passed, originated and/or authorized; (c) Securely undertakes no duties to Merchant other than the duties expressly provided for in the Agreement and subject to any provision in this Agreement limiting or otherwise relating thereto or therefor, and any and all other or additional duties that may be imposed upon Securely in law or equity are hereby irrevocably waived and released by Merchant to the fullest extent permitted by applicable law; and (d) Merchant acknowledges that Securely shall have no obligation or liability or responsibility for any of the foregoing.

11.3     Additional Merchant Acknowledgment As To Transaction Services. Without limitation to any other representation or warranty made by Securely or Merchant in this Agreement or any disclaimer in respect thereof or any limitation of liability therefor, Merchant acknowledges and agrees that (a) the Transaction Services are computer network-based services, which may be subject to outages, interruptions, attacks by third parties and delay occurrences; (b) the Transaction Services are designed for use with certain third-party programs, including, without limitation, certain Internet browser and software programs developed and owned by third parties, and that Merchant will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same; (c) Securely does not warrant and shall not be responsible for services or software provided by unaffiliated third-party vendors. In the event Merchant discovers that any Transaction Services are not in conformity with any provision in this Agreement or there shall occur, or if Transaction Services become subject to, outages, interruptions, attacks by third parties and delay occurrences, following such notice Securely shall use commercially reasonable efforts to remedy material interruptions and will provide adjustments, repairs and replacements, within its capacity, as may be reasonably necessary to enable the Transaction Services to perform their intended functions in a reasonable manner. Merchant expressly acknowledges that Securely does not warrant that such efforts will be successful. If Securely’s efforts are not successful, then as Merchant’s sole and exclusive remedy and recourse for any such occurrence, .Merchant may immediately terminate this Agreement, subject to Merchant’s obligation to pay to Securely any amounts then outstanding as of the date of such termination, which obligation shall survive the termination of this Agreement. Merchant hereby waives to the fullest extent permitted by applicable law any other right, remedy or recourse in respect of such occurrence or the failure of any related representation or warranty, if any, made by Securely in respect thereof to be true, complete or accurate. Merchant authorizes Securely to disclose to any third-party vendor information concerning Merchant to the extent required to deliver the requested service.

11.4    Merchant’s Warranties.

11.4.1 Merchant represents and warrants that at all times during the term of this Agreement and any renewal thereof: (i) all representations and statements made by Merchant in this Agreement, or in any other document relating hereto by Merchant or on Merchant’s behalf, are true, accurate and complete in all material respects; (ii) it is engaged in a lawful business and has all necessary rights and authorizations to sell and distribute its products and/or services; (iii) Merchant will comply, at Merchant’s own expense, with all applicable laws, this Agreement, End User data or the Transactions, including, without limitation: (a) the Payment Network Rules; (b) the Payment Card Industry Data Security Standard (PCI); (c) any regulatory body or agency having jurisdiction over the subject matter hereof; and (d) the Services Documentation.

11.4.2      In addition to, and without limitation to the generality of the foregoing, each time Merchant submits a Transaction or otherwise uses any Transaction Services, Merchant represents and warrants that: (a) Merchant has fully complied with all provisions of this Agreement, including without limitation all applicable law and all Network Payment Rules; (b) each statement made on the Application or registration of Transaction Services was true as of the date thereof and continues to be true at the time of the Transaction and the Transaction Services; (c) there have been no materially adverse changes in information provided related to Merchant’s financial condition, or management; (d) Merchant does not do business under a trade name or style not previously disclosed in writing, and there has been no change in the nature of Merchant’s business or the product lines that have not been previously disclosed; (e) the Transaction is genuine and arises from a bona fide sale of merchandise or services by Merchant, represents a valid obligation for the amount shown on the Transaction receipt and does not involve the use of the Payment Network for any other purpose; (f) Merchant has title to the Transaction and Transaction receipt, there are no liens or other encumbrances on it, and Merchant has the authority to convey the Transaction for processing; (g) the Transaction is not subject to any dispute, set-off or counterclaim; (h) the Transaction has not been previously presented for processing unless allowed by the this Agreement or the Network Payment Rules; (h) each statement made in any documentation related to the Transaction or the Transaction Services is true, and Merchant has no knowledge of facts that would impair the validity or collectability of the amount of the Transaction; (i) the person who executed the Application or registration on behalf of Merchant has the full power and authority to do so and to enter into the Agreement on behalf of Merchant; (j) the Agreement is the legal, valid, and binding obligation of Merchant enforceable against Merchant in accordance with its terms; (k) Merchant shall submit Transactions only in accordance with the information contained in the Application and the Agreement; (l) Merchant has the power and authority to authorize the automatic funds transfer provided for in the Agreement; (m) all related settlement or similar account are owned and controlled by Merchant and is a valid account for processing debit and credit transactions under the Agreement; (n) Merchant is not (i) a Sanctioned Person within the meaning of any applicable law, (ii) 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), (iii) 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 (iv) 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; and (o) Merchant will immediately notify Securely in writing of any material changes to any information provided herein including but not limited to a change in Merchant’s legal entity, location, business type, or the types of goods and services offered for sale by Merchant.

12.   LIMITATIONS OF SECURELY LIABILITY AND DISCLAIMERS BY SECURELY.

12.1     Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR THE SERVICE LEVEL AGREEMENT (“SLA”), SECURELY MAKES NO COVENANT, REPRESENTATION, OR WARRANTY OF ANY KIND WITH RESPECT TO THE TRANSACTION SERVICES OR OTHER SERVICES OR UNDERTAKINGS PROVIDED BY SECURELY UNDER OR IN RESPECT OF THIS AGREEMENT, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT. WITHOUT LIMITATION OR PREJUDICE TO THE GENERALITY OF THE IMMEDIATELY PRECEDING SENTENCE OR ANY OTHER DISCLAIMER, LIMITATION, OR PROVISION IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY DISCLAIMER, LIMITATION, OR PROVISION CONTAINED IN ANY OF SECTIONS 11, 12, OR 13, SECURELY SPECIFICALLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL EXPRESS, IMPLIED, OR OTHER REPRESENTATIONS, WARRANTIES, GUARANTEES, OR COVENANTS OF ANY NATURE WHATSOEVER THAT ANY MERCHANT ACCOUNT OR THE TRANSACTION SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE EXCEPT AS PROVIDED IN THE SLA. MERCHANT EXPRESSLY AGREES THAT THE MERCHANT ACCOUNT AND THE TRANSACTION SERVICES ARE PROVIDED BY SECURELY ON AN “AS IS,” “AS AVAILABLE” BASIS.

MERCHANT AGREES THAT SECURELY MAKES NO EXPRESS, IMPLIED, OR OTHER REPRESENTATIONS, WARRANTIES, GUARANTEES, OR COVENANTS OF ANY NATURE WHATSOEVER IN RELATION TO THIRD-PARTY PRODUCTS OR SERVICES. MERCHANT AGREES THAT MERCHANT’S USE OF THIRD-PARTY PRODUCTS AND SERVICES IS AT MERCHANT’S OWN RISK AND THAT SECURELY ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY THIRD-PARTY PRODUCT OR SERVICE, WHETHER OR NOT SECURELY IS A RESELLER OF OR REFERRAL AGENT FOR SUCH PRODUCT OR SERVICE. MERCHANT AGREES THAT IT MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE TRANSACTION SERVICES MADE BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING WITHOUT LIMITATION, ANY EXPRESS, IMPLIED, OR OTHER REPRESENTATIONS, WARRANTIES, GUARANTEES, OR COVENANTS OF ANY MERCHANT SERVICE PROVIDER.

      SECURELY SPECIFICALLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND WITHOUT LIMITATION OR PREJUDICE TO THE GENERALITY OF ANY OTHER LIMITATION OF LIABILITY, DISCLAIMER, OR PROVISION IN THIS AGREEMENT INCLUDING WITHOUT LIMITATION ANY SUCH LIMITATION, DISCLAIMER, OR PROVISION CONTAINED IN ANY OF SECTIONS 11, 12, OR 13, ANY LIABILITY FOR, AND MERCHANT EXPRESSLY AGREES THAT SECURELY SHALL NOT BE LIABLE TO MERCHANT OR ANY THIRD PARTY FOR, ANY LOSS OR DAMAGE ARISING FROM OR RELATED TO: (A) MERCHANT’S FAILURE TO PROPERLY ACTIVATE, INTEGRATE, OR SECURE MERCHANT’S MERCHANT ACCOUNT; (B) FRAUDULENT TRANSACTIONS PROCESSED THROUGH MERCHANT’S SECURELY ACCOUNT(S); (C) DISRUPTION OF TRANSACTION SERVICES, SYSTEMS, SERVER, OR WEBSITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (D) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A MERCHANT SERVICE PROVIDER, PAYMENT PROCESSOR, OR FINANCIAL INSTITUTION; (E) THE LIMITATION OF THE FUNCTIONING OF ANY TRANSACTION SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH; OR (F) MERCHANT’S USE OF THE MERCHANT ACCOUNT, THE TRANSACTION SERVICES, OR THE FAILURE OF THE SAME TO BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE SLA. MERCHANT AGREES THAT SECURELY SHALL NOT BE LIABLE FOR ANY SUCH LOSS OR DAMAGE HOWEVER OCCURRING IN ALL CASES WHETHER ARISING BY STATUTE, BY OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE AND UNDER ANY THEORY OF LAW WHATSOEVER, WHETHER IN CONTRACT, STRICT LIABILITY, CONTRIBUTION, INDEMNITY, OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, AND IN ALL CASES, WHETHER OR NOT ANY SUCH LOSS OR DAMAGE WERE FORESEEABLE OR WHETHER SECURELY HAS BEEN ADVISED OF OR MAY OTHERWISE BE AWARE OF, THE POSSIBILITY OF ANY SUCH DAMAGES.

12.2    Aggregate Liability. IF, NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, SECURELY (INCLUDING ANY OF ITS PARENTS, AFFILIATES, VENDORS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) IS FOUND TO BE LIABLE (INCLUDING WITHOUT LIMITATION, ANY LIABILITY OF SECURELY FOR ANY INDEMNITY OBLIGATION OF SECURELY UNDER THIS AGREEMENT) TO MERCHANT OR ANY THIRD-PARTY FOR ANY LOSS OR DAMAGE TO MERCHANT OR TO ANY THIRD-PARTY UNDER THIS AGREEMENT, THEN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF SECURELY (INCLUDING THAT OF ANY OF ITS PARENTS, AFFILIATES, VENDORS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) SHALL BE LIMITED TO A TOTAL AGGREGATE LIABILITY NOT TO EXCEED THE LESSER OF (A) AN AMOUNT EQUAL TO THE AGGREGATE COMPENSATION SECURELY ACTUALLY RECEIVED FROM MERCHANT IN THE FORM OF TRANSACTIONAL FEES UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF OCCURRENCE THAT IS CLAIMED TO HAVE CAUSED SUCH LOSS OR DAMAGE, OR (B) TEN THOUSAND DOLLARS ($10,000).

12.3    No Consequential Damages. IN NO EVENT SHALL SECURELY (INCLUDING ANY OF ITS PARENTS, AFFILIATES, VENDORS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) BE LIABLE (INCLUDING WITHOUT LIMITATION ANY LIABILITY OF SECURELY FOR ANY INDEMNITY OBLIGATION OF SECURELY UNDER THIS AGREEMENT) FOR ANY CLAIM, WHETHER AT LAW OR IN EQUITY, TO MERCHANT OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, NOMINAL, SPECIAL, OR EXEMPLARY LOSS OR DAMAGE SUFFERED OR INCURRED, REGARDLESS OF THE FORM OF ACTION, OR FOR ANY LOSS OF REVENUE, PROFITS OR BUSINESS, ANTICIPATED SAVINGS OR OTHER INTANGIBLE LOSS, LOSS OF GOODWILL OR REPUTATION, COSTS OF DELAY, LOST OR DAMAGED DATA, OR THE INCURRING OF LIABILITY BY YOU FOR LOSS OR DAMAGE OF ANY NATURE WHATSOEVER SUFFERED BY MERCHANT OR ANY THIRD-PARTIES, IN ALL CASES UNDER ANY THEORY OF LAW WHATSOEVER, WHETHER IN CONTRACT, STRICT LIABILITY, CONTRIBUTION, INDEMNITY OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, AND IN ALL CASES, WHETHER OR NOT ANY SUCH LOSS OR DAMAGES WERE FORESEEABLE OR WHETHER SECURELY HAS BEEN ADVISED OF OR MAY OTHERWISE BE AWARE OF, THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGES AND REGARDLESS OF WHETHER ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

12.4   Merchant Waiver. FOR ALL PURPOSES IN ORDER TO GIVE EFFECT TO ANY LIMITATION OF LIABILITY, DISCLAIMER, OR PROVISION CONTAINED IN THIS AGREEMENT INCLUDING WITHOUT LIMITATION ANY LIABILITY, DISCLAIMER OR PROVISION CONTAINED IN ANY OF SECTIONS 11, 12 OR 13 AND WHETHER OR NOT EXPRESSLY OTHERWISE WAIVED IN THIS AGREEMENT, MERCHANT HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FOR AND ON BEHALF OF ITSELF AND ANY MERCHANT REPRESENTATIVES, ANY RIGHT, REMEDY OR RECOURSE THAT IT MAY OTHERWISE HAVE OR THAT MAY OTHERWISE BE AVAILABLE AGAINST SECURELY AND ITS AFFILIATES IN CONNECTION WITH THE USE OF ANY MERCHANT ACCOUNTS, ANY TRANSACTION OR TRANSACTION SERVICES, SECURELY SERVICES OR OTHERWISE UNDER OR IN RESPECT OF THIS AGREEMENT.

12.5    Limitations of Applicable Law. WHETHER OR NOT SOMETIMES EXPRESSLY SO LIMITED, NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO EXCLUDE OR LIMIT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW.

13.   Indemnification.

13.1     Indemnification by Securely.

13.1.1 General. Securely shall defend, indemnify and hold Merchant and any of Merchant’s officers, directors, agents and employees harmless from and against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by Merchant, arising out of or relating to any alleged infringement of a U.S. patent or copyright of any other entity or person by the Transaction Services.

13.1.2      Limitation; Prevention of Infringement. Notwithstanding anything contained in this Agreement to the contrary, Securely’s obligations in Section 13.1.1 do not apply if: (i) the Transaction Services have been modified by parties other than Securely; (ii) the Transaction Services are used in conjunction with data where use with such data gave rise to the infringement claim; (iii) Merchant’s failure to install upgrades or patches provided by Securely where such upgrade or patch would have removed the infringing condition; (iv) Merchant’s use of the Transaction Services in a manner inconsistent with Services Documentation; or (v) Merchant’s use of the Transaction Services with software or hardware not authorized by Securely, where use with such other software or hardware gave rise to the infringement claim. If the Transaction Services or any component thereof becomes, or in Securely’s opinion is likely to become, the subject of a claim of infringement, then Merchant shall permit Securely, at Securely’s sole option and expense, either to (i) procure for Merchant the right to continue using the Transaction Services as permitted in this Agreement, or (ii) replace or modify the affected Transaction Services or infringing component so that it becomes non-infringing. If, after using commercially reasonable efforts, Securely is unable to cure the infringement, either party may immediately terminate this Agreement so long as Securely is made financially whole.

13.1.3      MERCHANT AGREES THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SECTION 13.1 CONSTITUTES STATES THE ONLY, AGGREGATE AND ENTIRE LIABILITY OF SECURELY TO MERCHANT AND ANY THIRD-PARTY WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON OR ENTITY IN RESPECT OF OR WHILE RECEIVING OR PERFORMING ANY TRANSACTION SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MERCHANT HEREBY WAIVES, FOR AND ON BEHALF OF MERCHANT, ITS AFFILIATES AND ALL OTHER MERCHANT REPRESENTATIVES, AGENTS, SUCCESSORS AND ASSIGNS, ANY OTHER AVAILABLE RIGHT, REMEDY OR RECOURSE IN ALL CASES UNDER ANY THEORY OF LAW WHATSOEVER, WHETHER IN CONTRACT, STRICT LIABILITY, CONTRIBUTION, INDEMNITY OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, AND IN ALL CASES, WHETHER OR NOT ANY SUCH LOSS OR DAMAGES WERE FORESEEABLE OR WHETHER SECURELY HAS BEEN ADVISED OF OR MAY OTHERWISE BE AWARE OF, THE POSSIBILITY OF ANY SUCH DAMAGES.

13.2    Indemnification by Merchant. To the fullest extent permitted by applicable law and without limitation to any other indemnity or similar obligation of Merchant contained in this Agreement, Merchant agrees to defend, indemnify, and hold harmless Securely and its Affiliates, and its and their respective officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses, chargebacks or other Reversal Fees,, and other liability of any nature (including reasonable attorneys’ fees and other litigation expenses) incurred by Securely, arising out of or relating to (a) any breach of or alleged breach by Merchant or any Merchant Representatives in any covenant, representation, warranty, or obligation of Merchant set forth in this Agreement; (b) any damage or loss caused by negligent act, error or omission, fraud, dishonesty or willful misconduct by Merchant or any Merchant Representatives; (c) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by Merchant to Securely; (d) payment card, Financial Institution, or other transactions submitted by Merchant to Securely and rejected by Securely or an issuing Financial Institution; (e) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting, directly or indirectly from Merchant’s actions; (f) claims by End Users, including, without limitation, claims relating to the disclosure of End User or consumer data; or (g) any alleged or actual violation by Merchant of any applicable law, wrongful use, unauthorized use or misuse by Merchant or any Merchant Representative(s) of any Merchant’s devices and equipment, Merchant’s Account(s), Transaction Services, the Securely Payment Gateway, the Domains, the Merchant Interface, the Payment Network, Payment Network Rules, the API, any Mobile Payment Processing Software, any payment terminals, any NFC devices, and the Intellectual Property of Securely or any Processor, whether or not an Affiliate of Securely, or that of any Merchant Service Provider. In the event Merchant causes fines and/or penalties to be charged to Securely by the Payment Networks or any other entity, Merchant agrees to immediately reimburse Securely for said fines or penalties.

13.3   Attorney Fees. Merchant also agrees that Merchant to the fullest extent permitted by applicable law, will be liable for and will indemnify and reimburse Securely for all attorneys’ fees, including in-house legal fees, and other costs and expenses paid or incurred by Securely in the enforcement of this Agreement or in matters relating to this Agreement, or arising from any breach by Merchant of this Agreement, or any other wrongdoing by Merchant or any Merchant Representatives. In the event Securely must engage in any recovery or collection efforts to collect any amounts due pursuant to this Section, Merchant also will reimburse Securely for all fees and expenses incurred in such collection, plus reasonable administrative fees and expenses.

13.4    Indemnification Procedure. The obligations of each party (“Indemnitor”) under this Section 13 to defend, indemnify and hold harmless the other party (“Indemnitee”) shall be subject to the following: (a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this section to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnitee may participate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice Indemnitee in any way.

13.5    Exceptions. If Merchant is an agency or instrumentality of a state of the United States and is precluded by the law of Merchant’s state from entering into indemnification obligations, then the obligations under Sections 13.2 and 13.3 shall apply only to the extent permitted by such state law.

14.   General Provisions.

14.1   Marketing. Except for any announcement intended solely for internal distribution or any disclosure required by applicable law or any accounting requirements beyond the reasonable control of either party, all media releases, public announcements or public disclosures (including, but not limited to, promotional or marketing material) by Merchant or by any Merchant Representatives as to this Agreement or its subject matter, including the name, trade name, trademark, or symbol of the other party, are prohibited without the prior written consent of Securely, which may be withheld in its sole discretion. Notwithstanding the foregoing, either Party shall be entitled to disclose the existence of the relationship formed hereunder between Securely and Merchant without the prior written consent of the other. Securely shall be entitled to exercise all of its rights under Section 9, including without limitation under Section 9.4 and, without limitation thereto or any rights, licenses thereunder or permitted by any other provision in this Agreement, may include Merchant’s name and/or logo similar Intellectual Property of Merchant and its Affiliates in Merchant lists within Securely corporate presentations and other rights without additional prior written consent from Merchant.

14.2 Exclusivity. Merchant acknowledges and agrees that the rights granted to Securely under this Agreement are exclusive. During the Term, Merchant shall not, directly or indirectly, enter into any agreement, arrangement, or business relationship with any third party that provides services similar to or competitive with those offered by Securely, nor shall Merchant take any action that would undermine, interfere with, or diminish the exclusivity of this Agreement. This restriction applies to any partnerships, reselling agreements, technology integrations, or any other form of collaboration with a competitor of Securely.

14.3 Relationship of the Parties. The relationship between Securely and that of Merchant is that of independent contractors. Understanding that Securely may have separate agreements with other third parties, including without limitation Merchant Service Providers, in respect of the Transaction Services, nothing in this Agreement is intended to be made and shall not create any other relationship between or among Securely, Merchant or any third parties, including without limitation any Merchant Service Provider, of any other nature whatsoever, including, without limitation, that of a partner, a joint venturer, an employer/employee, or a principal/agent. Neither Securely nor Merchant shall represent itself or make any representation that in any way may be construed to the contrary.

14.4 Notices. Except as other expressly provided in or permitted by the Agreement, all notices to Merchant contemplated by this Agreement shall be given electronically, sent to the electronic mail address provided by or for Merchant in its Application or registration for the Transaction Services and/or posted in the Merchant’s payment portal(s)/gateway(s). Service termination and other notices required by this Agreement to be to Securely shall be given to Securely in writing and sent to Xero Allied Business Advantage, LLC, PO Box 173984 Arlington, Texas 76003 or by email to help @ securely.io. Attention: General Counsel. Notice to Securely will be deemed to be made upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing, if sent by certified or registered mail, postage prepaid.

14.5  Amendment; Modifications. Merchant shall have no right to amend or modify this Agreement. No consent to any departure by either party therefrom will in any event be effective unless the same is made in writing and signed by both Securely and Merchant. Any such departure to the requirements of this Agreement will be effective only in the specific instance and for the specific purpose for which given. Notwithstanding anything to the contrary contained in this Section 14.5 or otherwise in the Agreement, Securely may amend the Service Documentation, the Fee Schedule and this Agreement at any time upon written or electronic notice to Merchant not less than ten (10) days prior to the effective date of such amendment; provided, no modification to the Fee Schedule will become effective until thirty (30) days after notice. If Merchant does not agree to such amendment, Merchant agrees that its sole remedy is to immediately terminate this Agreement upon written notice to Securely in the manner required by this Agreement. No such termination shall be construed to relieve Merchant from the any performance, payment, indemnity or other obligation of this Agreement, all of which shall survive such termination.

14.6 Severability; Headings; Time is of the Essence. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings used in this Agreement are for convenience and reference purposes only are intended to nor shall they be deemed to limit or define the scope of the contents of an applicable section, nor in any other way to affect this Agreement. Any provision in the Agreement held to be prohibited or unenforceable in any jurisdiction by reason of applicable law will, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating or affecting the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. Time shall be deemed to be of the essence in all matters related to Merchant’s performance, payment and other obligations under this Agreement.

14.7  Governing Law; Consent to Jurisdiction. This Agreement will be deemed made and entered into in Tarrant County, Texas, and will be performed by Securely in such county. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas excluding (i) that body of law known as conflicts of law and (ii) the United Nations Convention on Contracts for the International Sale of Goods. To the fullest extent permitted by applicable law, Merchant and Securely agree that any claim, action or proceeding relating to this Agreement exclusively shall be brought and adjudicated in the state or federal courts located in Tarrant County, Texas. The parties agree that such venue is proper and irrevocably and unconditionally submit to such the jurisdiction of such courts with respect to any such claim, action or proceeding whether in the nature of an action at law or in equity under any theory of law whatsoever, including without limitation any action or proceeding for injunctive relief, to recover any monetary losses or damages from unpaid obligations of the Merchant under the Agreement. Securely and Merchant hereby expressly waive to the fullest extent permitted by applicable law, any right to bring any such action or proceeding in any other venue and further expressly waived any objection it may now have, or in the future will have, to any such action or proceeding being brought, in either of these courts and agree not to plead or claim that any action brought in either of these courts has been brought in an inconvenient forum. In the event that Securely, any Merchant Service Provider or Financial Institution is required to resolve a dispute with Merchant that requires any action under this provision, Merchant hereby agrees and consents to receive service of process by certified mail, and the parties hereby expressly consent to jurisdiction therein.

14.8 Merchant’s Authorization to Securely to Complete Third-Party Applications. By accepting the terms and conditions of this Agreement, Merchant expressly authorizes Securely (including without limitation any Securely’s duly authorized officers, employees, agents or representatives) to complete, execute and deliver for and on behalf Merchant’s the below referenced third-party applications (the “Third-Party Applications”), including without limitation, the right to apply Merchant’s electronic signature on this Agreement to effectuate the completion of the Third- Party Applications, as may be necessary or convenient, as determined by Securely in its reasonable business judgment, to provide Merchant with the Transaction Services or other Securely Services contemplated or required by this Agreement. To the extent required by law in order to give effect thereto, to the fullest extent permitted by applicable law Merchant hereby appoints Securely as its attorney in fact for all purposes contemplated by this section 14.8.

In furtherance of the foregoing and for all purposes contemplated by this Section 14.8, and without limitation to any other provision in this Agreement (including without limitation in this Section 14.8 or in Section 1), Merchant hereby also authorizes Securely to sign any Third-Party Application on behalf of Merchant and on behalf of the Merchant representative who accepted, entered into, executed this Agreement and who in doing so has also represented (on behalf of the Merchant and on behalf of such Merchant representative) that this Agreement is the binding obligation of the Merchant, which authorization shall be deemed to include the authorization as it may pertain to the any commercial guarantee of the Merchant and any personal guarantee of such Merchant representative (link the application), both individually and as any owner, member, shareholder or an otherwise authorized representative of the Merchant.

All authorizations contained in this Section 14.8 are also intended to authorize Securely to update any Third-Party Applications as may become necessary.

Without limitation to any other provision in this Agreement (including without limitation in this Section 14.8 or in Section 1) Merchant also authorizes Securely: (a) to use any of Merchant’s information provided by Merchant to Securely in the Application to complete the Application, or that may otherwise be obtained by Securely at any time pursuant to or by application of any provision of this Agreement (for purposes of this Section 1.3, the “Collected Information”); (b) to use or disclose, or permit any third parties to use or disclose the Collected Information as may be necessary in servicing the Merchant’s Transaction or Transaction Services requested or authorized by Merchant according by application of the Privacy Policy (link), or as otherwise permitted under applicable law, including without limitation the Gramm-Leach-Bliley Act and related federal and/or state regulations and legislation; and (c) to receive and respond for and on behalf of Merchant to electronic and physical third-party communication to the extent reasonably required as determined Securely in its reasonable business judgment to facilitate the business relationship between Merchant and third parties relative to the necessary services provided by Securely pursuant to this and in conformity with this Agreement.

Merchant covenants and agrees to comply in full with the applicable terms of any Term of Service, Privacy Policy, or similar agreement of any Money Transaction Facilitator, Financial Institution or other third-party identified below whenever requesting or using any Transaction Services or other Services from Securely.

14.9    Waiver. Securely’s failure to enforce this Agreement will not waive right of Securely under this Agreement. Waivers of any provision of this Agreement must be in writing and signed by Securely. A waiver in one instance will not apply to other occasions unless that intent is clear from the signed waiver. The failure of Securely to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect.

14.10    Class Action Waiver. NOTE: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND THE RESOLUTION OF DISPUTES MERCHANT ACKNOWLEDGE AND AGREES THAT TO THE FULLEST EXTENT PERMITTED BY LAW ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND SHALL NOT BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES.

14.11     Agreement Binding on Successors. The Agreement is binding upon the successors and assigns of Securely and Merchant. Merchant will not assign or transfer (including by merger, change of control or operation of law) this Agreement (in whole or in part) to another person or entity without prior written consent from Securely, which consent may be withheld by Securely as determined in its sole discretion, and any purported assignment made without Securely consent will be void. To the fullest extent permitted by applicable law, Securely shall have the right to assign this Agreement and any and all of its rights or obligations hereunder at any time upon written notice to Merchant.

14.12    Force Majeure. Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, pandemics, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions of a third-party, infiltration or disruption of the Transaction Services by a third-party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the Transaction Services, or other catastrophes or any other occurrences which are beyond such party’s reasonable control (each a “Force Majeure Event”).In no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event.

14.13    Telephone Recording. To the fullest extent permitted by applicable law, Merchant acknowledges, agrees and consents to Securely monitoring and recording any Merchant service telephone conversations with Merchant at any time, without additional further notice to the parties to such conversations.

14.14    Entire Agreement. This Agreement, the Securely Merchant Application Form, the Application together with all of Securely’s policies, forms or other agreements between Securely and Merchant referenced in this Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. Merchant acknowledges that this Agreement reflects an informed, voluntary allocation between Securely and Merchant of all risks (both known and unknown) associated with the Transaction Services.

14.15    Survival. Merchant shall have no right to terminate a Merchant Account or this Agreement except as expressly in Section 8. Securely may suspend, cancel or terminate any Merchant Account or this Agreement at any time as contemplated by or reserved in this Agreement, including without limitation as provided in Section 8. If for any reason whatsoever, Merchant or Securely suspend, cancel or terminate any Merchant Account or this Agreement as permitted by this Agreement, Merchant agrees that all of its payment, performance and other obligations under this Agreement shall survive such action. In addition, any permitted suspension, cancellation or termination of this Agreement by Merchant or Securely shall not be construed to revoke any consent that Merchant has provided to Securely by application of any provision of this Agreement, and all Merchant consents shall be deemed to survive. Similarly, all provisions of this Agreement that by their nature should survive in order to effectuate or give force to any payment, performance or other obligations and any rights of Merchant or Securely under or in respect of this Agreement also shall survive. Such provisions include, by way of example only and without limitation, all provisions related to all: limitations and disclaimers in respect of any warranties and representations; limitations on liability; indemnity obligations; requirements in respect of choice of law, confidentiality, governing law, forum, venue, jurisdiction, and arbitration or other proceedings at law or in equity; all severability provisions; provisions or rights expressly stated to survive, and the provisions of this Section 14.15 also shall survive the suspension, cancellation or termination of Merchant’s Account or this Agreement.

14.16    Mobile Device Application. If Merchant chooses to download and use Securely or any Merchant Service Provider mobile device application, Merchant’s access to and use of Transaction Services shall be subject to the additional usage terms governing such application located within the application service provider’s user interface.

14.17    Affiliates. The rights, duties and/or obligations of Securely under this Agreement may be exercised and/or performed by Securely and/or any of Securely’s Affiliates, or any of their subcontractors and/or agents. To the fullest extent permitted by applicable law, all liabilities to Merchant arising under or as a consequence of this Agreement, whether arising from the acts or omissions of Securely or any of its Affiliates, or any its or their contractors, subcontractors or agents, shall be solely that of Securely’s and not those of any of its or their contractors, subcontractors or agents. Merchant agrees to bring any claim and or action relating to the foregoing against Securely only and not against any of Securely’s Affiliates, or any of their subcontractors and/or agents.

FOR SUCH PURPOSES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MERCHANT HEREBY WAIVES, FOR AND ON BEHALF OF ITSELF AND THE MERCHANT REPRESENTATIVES ANY RIGHT, REMEDY OR RECOURSE THAT IT MAY OTHERWISE HAVE OR THAT MAY OTHERWISE BE AVAILABLE AGAINST SECURELY AND ITS AFFILIATES.

14.18    Governmental Merchants. If Merchant is a governmental or quasi-governmental entity, Merchant covenants and represents that it has informed Securely, and will inform Securely of any changes or updates, in writing, of any applicable law or ethical requirement that would restrict or require disclosure of any political contributions made by Securely or its Affiliates or any of its or their respective directors, officers, or employees because of the existence of a contract between Merchant and Securely.

14.19    Export Control. Merchant understands and acknowledges that Securely is subject to regulation by agencies of the United States government which prohibits export or diversion of certain products and technology to certain countries, persons, or other entities. Any and all obligations of Securely to provide the Transaction Services shall be subject to all such applicable export and other laws. Merchant covenants and agrees to comply with all applicable export and other laws, and without limitation to the generality of the foregoing, not to export or re-export any Securely Intellectual Property (i) into (or to a national or resident of) any country to which the United States has embargoed goods including, without limitation, Iran, Cuba, Syria, Sudan, the Crimea Region of the Ukraine, and North Korea; or (ii) to any person on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Person’s List.

14.20   Merchant Transaction Reversal and Related Liability. Without limitation to any other obligation of Merchant under or in respect of this Agreement, Merchant acknowledges and agrees that (a) Merchant, and not Securely, is solely responsible for any payment activity initiated by Merchant or its End User using the Securely Platform Services, including, without limitation, any fraudulent activity; and (b) Securely has no obligation to ensure that the funds required to complete a payment will be available, and that any payment sent or received by Merchant or any End User may (i) be reversed in accordance with Securely or its Financial Institution partners’ risk management policies, (ii) be reversed in accordance with applicable law, including without limitation, by ACH return as defined under any applicable National Automated Clearing House Association (“NACHA”) or any Real Time Payment Network (“RTPN”) or other Payment Network Rules, (iii) fail due to Merchant or its End User error, (iv) fail due to the provision of inaccurate information by Merchant or its End User, or (v) be cancelled or rejected by an Merchant’s End User or its End user’s Financial Institution or any other Reversal. Except for any Reversal made in error by Securely, Merchant shall be liable to Securely and its Financial Institution partners for any and all losses caused by Reversals and any other Merchant Account activity, whether or not authorized by Merchant or its End User, including unauthorized or erroneous activity initiated by Merchant, its End Users, or the Application, whether through misconduct, negligence, error, or otherwise, and Securely may assist in such efforts, including without limitation by providing all Collected Information or other information/data obtained by Securely pursuant to or by application of any provision in this Agreement. Merchant also authorizes Securely and its Financial Institution partners to recover any such amounts due to Securely and/or its Financial Institution partners by debiting the available balance in any Merchant Account with Securely or in any linked depository account with any Financial Institution. If the available balance in Merchant’s Account with Securely or any linked is insufficient, Merchant authorizes Securely and its Financial Institution partners to take any of the following actions to recover the remaining amounts from Merchant: (x) debit Merchant payment or other Account(s) and any linked depository account with any Financial Institution; (y) request immediate payment from Merchant, and, if payment is not received timely, engage in collection efforts; and (z) pursue any rights or remedies available under this Agreement or any of Merchant’s agreements with Securely for failure to pay amounts owed to Securely, including, without limitation, termination for non-payment. Securely may at any time require that Merchant must provide a transaction Assurance, including without limitation a personal/commercial guaranty for any amounts owed under this Agreement. In the event that Merchant’s Application or Account has an unacceptable number or rate of Reversals, Securely reserves the right to immediately restrict or suspend Merchant’s use of the Securely Platform Services, including without limitation by terminating this Agreement.

14.21    Notwithstanding anything to the contrary in this Agreement, and without limitation to any other provisions contained herein, no Merchant or Merchant End User of the Securely platform may attack or otherwise harm the reputation or character of a principal, executive, or other employee of Securely verbally, in writing, or by any other means including but not limited to slander, defamation, negative talk, harmful posts, or any other harmful actions. Merchant may not go to office(s) of Securely or any other location to interact with Securely employees or representatives unless permitted by Securely in advance for a specific business purpose. This extends to any organization Merchant or its representative is associated with and chooses to remain aligned with. Once notified, the Merchant, its representatives, and End User has seven (7) days to correct the harmful actions or separate from any organization or Securely may immediately terminate all services and relationship with Merchant.

15.   Definitions.

“Abandoned Account” means any inactive Account through which no Transactions have been processed for a minimum of six (6) months OR for which any of the Account contact information (address, phone numbers, fax numbers, email address) and billing information (ABA routing number and Financial Institution account number and/or card number) becomes no longer valid.

“Account” means a top-level gateway identifier that is issued by Securely to Merchant to enable Merchant’s use of Transaction Services hereunder, including without limitation any Original Account or any Subsequent Account. For each business unit within Merchant’s organization that requires invoices to be sent to an address different than the primary Account, a new Account is required.

“Additional Service(s)” means the following services: Securely Mobile Payment Processing Software, payment terminals, NFC devices, and hardware sales and service, any other service or product that may be offered by Securely at any time from and after the Effective Date.

“Affiliates” means any entity that controls, is controlled by, or is under common control with a party, including its parents and subsidiaries.

“API” means the Securely application programming interface.

“Batch(es)” means any batch settlement submitted to a Processor or Financial Institution by Securely or any of its processing partners consisting of any card authorization, credit, ticket only, decline transaction, Financial Institution transaction, or other related transaction.

“Confidential Information” shall mean (i) all information expressly defined as such in Section 10.1, and (ii) any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any third-party’s information, such third-party’s) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, Services Documentation (in whatever form or media provided), inventions, processes, plans, financial information, End-User data, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not be deemed to include information if: (i) it was already known to the receiving party prior to the Effective Date of this Agreement, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (iii) it has been rightfully received by the receiving party from a third-party and without breach of any obligation of confidentiality of such third-party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or, (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party.

“Merchant’s Marks” means Merchant’s customary name and logo, and such other trademarks as Merchant may from time to time notify Securely in writing to be “Merchant’s Marks” within the meaning of this Agreement.

“Domain(s)” means any website or sites operated by or for Securely, including without limitation the URL securely.io, securelyme.com, securely.us as well as their subdomains, subsites and subdirectories.

“Effective Date” means the effective date of this Agreement. The Effective Date shall be the earlier of the date Merchant acknowledges and agrees to the Agreement terms and conditions by (a) clicking the “I AGREE” button associated with the Agreement; (b) acknowledging Merchant’s acceptance of the Agreement by any other method allowed by Securely, including without limitation, the Application, the Securely Order Form, the execution of a Merchant Service Provider application that incorporates this Agreement whether by reference or otherwise; or (c) presentation by Merchant to Securely for the first Transaction Services, including without limitation any test therefor.

“End User” shall mean any person that purchases goods or services from Merchant during the course of Merchant’s use of the Transaction Services; provided that Merchant has provided Securely all related or required information for each End User to effectuate the Transaction Services.

“Fee Schedule” means the applicable list of fees and charges to be paid by Merchant to Securely for Transaction Services. The Fee Schedule is included in the Securely Order Form.

“Financial Institution” means any intermediary between consumers and capital or debt markets that may provide banking or similar services, deposits and investment services, including without limitation, any bank, banking association, commercial banks, investment banks, brokerage firms, insurance companies, credit unions, savings and loans associations, asset management funds and other financing firms or financing agencies and any Payment Networks, Money Transaction Facilitator, and Merchant Service Provider.

“Intellectual Property” shall mean and include all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any state, country or jurisdiction;

(ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.

“Merchant Interface” means the user interface available to Merchant at a web site merchant.securely.us or other web sites under a Securely domain.

“Merchant Service Provider” for purposes of this Agreement, a Merchant Service Provider mean any third-party (or such third-party’s Affiliates) through whom Securely may offer or provide Transaction Services to Merchant, including but not limited to any Processor, reseller, Independent Sales Organization (“ISO”), application service provider, merchant aggregator, acquiring or other Financial Institution.

“Money Transaction Facilitator” means Dwolla, Inc. (including its partner Evolve Bank and Trust, member FDIC) together with any other Financial Institution or Merchant Service Provider with whom Securely may contract for money movement services in furtherance of Transaction Services or other Services provided by Securely.

“Payment Networks” means Visa, MasterCard, American Express, Discover Financial Services, NACHA, any Financial Institution, any Money Transaction Facilitator, or any RTPN payment or any other payment network, including without limitation related to any transaction or other Securely Services applicable to this Agreement together with any Affiliate of any of the foregoing.

“Payment Network Rules” means the applicable operating rules, bylaws, schedules, supplements and addenda, manuals, instructions, releases, specifications, and other requirements, as may be amended from time to time, of any of Payment Network.

“Privacy Policy” governs and explains our handling of information, and can be found at https://securely.io/privacy-and-terms

Payment Processing Services means any service facilitating the communication and movement of money through payment and Financial Institutions or Money Transaction Facilitator networks and any other Payment Network.

“Processor” means a network of financial institutions that processes many types of consumer payments, including debit and credit card transactions.

“Reversal” means any Transaction or similar reversal initiated by any Merchant Service Provider, Financial Institution, Money Transaction Facilitator, or a Processor related to as an erroneous charge, insufficient funds or other operational errors resulting a failed or reversed Transaction, Transaction Services, or a chargeback on a payment card or similar fee in respect of a Payment Network.

“Reversal Fees” means the Fees identified in the Fee Schedule for a Reversal.

“Services Documentation” means collectively, the operating instructions, user manuals, and help files, in written or electronic form, made available to Merchant and that are intended for use in connection with the Transaction Services.

“Trademark(s)” means all common law or registered trademark, service mark, trade name and trade dress rights and similar or related rights arising under any of the laws of the United States or any other country or jurisdiction, whether now existing or hereafter adopted or acquired.

“Transaction(s)” means any card authorization, credit, debit, ticket only, capture or settlement request, decline transaction, Financial Institution, Money Transaction Facilitator or other related transaction, completed or submitted under Merchant’s Account to Securely.

“Transaction Assurance” A primary credit card on file that acts as a guarantee against any Transaction facilitated by Securely and is charged in the event funds are needed to convert a balance created by another Transaction. No Transaction Assurance may be removed from a Merchant Account within seven (7) days after a cash Transaction

“Transaction Services” means all services provided by Securely to Merchant under the Agreement, including without limitation all services pertaining or relating to payment management solutions, Batches and all Additional Services.

“Securely Order Form” means the form attached to this Agreement as . Whenever used in this Agreement, any reference to Application shall include without limitation the Securely Order Form.

“Securely Trademarks” means those trademarks listed below and such other trademarks as Securely may from time to time notify Merchant in writing to be “Securely Trademarks” within the meaning of this Agreement.

Securely® SecurelyMe® SecurelySpend®

SecurelyPaymentGateway™ SecurelyPayment Service™ Digital Cash™

APPENDIX A –ADDITIONAL SERVICE(S) TERMS AND CONDITIONS

In the event Merchant enrolls in and/or utilizes any of Securely’s Additional Service(s), the following terms will apply and form part of the Agreement:

1.      Expansion of Services. The term “Transaction Services” shall include each of the Additional Services. All terms of the Agreement applicable to the Transaction Services shall be applicable to each Additional Service(s).

2.     Payment Terms. If fees are applicable to the Additional Service(s), Merchant agrees to pay the Additional Service fees in accordance with the amounts, billing and payment terms set forth in Section 6 of this Agreement and/or in the Additional Service documentation page accessed during enrollment in the applicable Additional Service or in the Securely Order Form. By signing the additional service agreement, or by clicking the “I ACCEPT” button, Merchant acknowledges Merchant’s acceptance of such fees, Merchant’s obligation to pay the fees and the terms and conditions applicable to the Additional Service.

3.     Merchant’s Warranty. In addition to the warranties set forth in the Agreement, Merchant also represents, warrants, and covenants to Securely that its use of the Additional Services and any information gathered by it in connection with use of an Additional Service: (a) will be fully compliant with all applicable local, state and federal laws, rules, and regulations; (b) will be in accordance with all applicable Services Documentation; and (c) will not be used for any purpose other than in connection with the Additional Service.

4.     Acknowledgement. Merchant understands, acknowledges, and agrees that (a) Merchant will be solely responsible for ALL Transactions processed through its payment gateway Account(s), regardless of whether such Transactions are monitored by or transmitted through an Additional Service; (b) Merchant will be solely responsible for its use of the Additional Service including, without limitation (i) configuring, maintaining and updating, as Merchant deems necessary, the applicable settings for Merchant’s Additional Service Account; and (ii) with respect to each Transaction processed via Merchant’s payment gateway account(s), and regardless of any data, analysis, or information generated or not generated by the Additional Service, as applicable, determining the appropriate action for each such Transaction (i.e., approve, void, decline, reject); (c) under certain circumstances, it may be necessary for Securely to adjust Merchant’s Additional Service security settings, with or without notice to Merchant, to guard against fraudulent activity and that such actions may inadvertently cause legitimate transactions to expire, be rejected or delayed; and (d) Securely shall not be liable under any theory of law, including negligence, for any loss associated with any of the foregoing.

5.     Disclaimer. IN ADDITION TO ANY LIMITATIONS OR DISCLAIMERS SET FORTH IN THE AGREEMENT, MERCHANT ACKNOWLEDGES AND AGREES THAT THE ADDITIONAL SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. SECURELY DOES NOT REPRESENT OR WARRANT THAT THE ADDITIONAL SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. MERCHANT MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE ADDITIONAL SERVICES BY ANY THIRD-PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS OR WARRANTIES OF ANY MERCHANT SERVICE PROVIDER. SECURELY SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE ADDITIONAL SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THE AGREEMENT. MERCHANT UNDERSTANDS AND AGREES THAT SECURELY SHALL BEAR NO RISK WITH RESPECT TO MERCHANT’S SALE OF PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CARD FRAUD OR CHARGEBACKS OR OTHER REVERSAL OR ANY OTHER TRANSFER ERRORS.

6.     Risk, Security and Disclosure. In addition to the data collection, privacy and security obligations set forth in the Agreement, Merchant understands and agrees that the risk and security suggestions provided in any Services Documentation for any of the Additional Services are solely for illustrative purposes to show best industry practices. Merchant is solely responsible for choosing the appropriate settings and parameters for its account.

7.     Integration. If Merchant elects to use any of the Additional Services subsequent to the Effective Date and is presented with updated Additional Service(s) Terms and Conditions, the latter version of the Terms and Conditions will apply to Merchant’s use of the Additional Service(s).

8.     Termination. Termination or expiration of the Agreement shall terminate access to the Additional Services.