INTRODUCTION

Our company, ACHQ, values the privacy of our customers and is committed to safeguarding the personal information we collect. This privacy policy explains how we collect, use, and share personal information when you use our services, including our website and payment processing services.

COLLECTION OF PERSONAL INFORMATION

We collect personal information that you provide to us directly or to our customers, such as when you create an account or make a payment. This may include your name, email address, phone number, and payment information. We may also collect personal information from third parties, such as credit bureaus and fraud detection services, to verify your identity and prevent fraudulent transactions.

USE OF PERSONAL INFORMATION

We use your personal information to provide and improve our payment processing services, including processing ACH and RTP payments, verifying your identity, and communicating with you about your transactions.

SHARING OF PERSONAL INFORMATION

We never sell your personal information to third parties. However, we may share your personal information with our sponsor bank, ODFI partners, or data processors as necessary to provide and improve our payment processing services. We may also share your personal information as required by law, such as in response to a subpoena or court order, or to protect the safety, rights, or property of our company or others.

PROTECTION OF PERSONAL INFORMATION

We implement measures to protect the security and confidentiality of your personal information, including encryption of sensitive information and secure servers. This includes encryption of sensitive information using industry-standard protocols such as TLS 1.2 for data in transit and SHA256 for data at rest. However, no method of transmission over the internet or method of electronic storage is completely secure, and we cannot guarantee absolute security of your personal information.

DATA RETENTION

We retain personal information for as long as necessary to fulfill the purposes outlined in this privacy policy, unless a longer retention period is required by law or permitted by consent. When personal information is no longer needed, we securely delete or destroy it.

YOUR PRIVACY RIGHTS

We comply with relevant laws and regulations, including the California Consumer Privacy Act (CCPA) and the Gramm-Leach-Bliley Act (GLBA), which provide certain rights to individuals regarding their personal information. We also take best practices into account when handling personal information, including those set forth in the General Data Protection Regulation (GDPR). These rights may include the right to request access to or deletion of your personal information, and the right to opt out of the sale of your personal information. You may exercise your privacy rights by contacting us at privacy@achq.com. We will respond to your request within a reasonable time frame and may require additional information to verify your identity.

THIRD-PARTY PROCESSORS

We use third-party processors to provide and improve our payment processing services. We carefully select, monitor, and hold these processors accountable for their use of personal information in accordance with this privacy policy.

INFORMATION FOR CHILDREN

We do not knowingly collect personal information from children under the age of 13. If we become aware that we have collected personal information from a child under the age of 13, we will take steps to delete the information as soon as possible.

OPT-IN CONSENT

We do not use personal information for marketing purposes. However, if we were to use personal information for marketing communications in the future, we would obtain explicit opt-in consent from individuals in accordance with relevant privacy laws.

CHANGES TO THIS PRIVACY POLICY

We may update this privacy policy from time to time to reflect changes in our practices or to comply with legal requirements. We will post any updates on this page and encourage you to review this privacy policy regularly.

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These ACH Agreement Terms and Conditions (the “Agreement”) govern the agreement between the company (“Merchant”) named on any ACH processing Application (“Application”) to which these Terms and Conditions are attached and ACHQ, Inc., a Florida company with its principal place of business at 1990 Main St Suite 750, Sarasota, FL 34236 (“ACHQ”). Merchant agrees to be bound by the terms of this Agreement as stated herein. Each of the individuals signing this Agreement and the Application represents and warrants that he or she has the full power and authority to bind the party (Merchant) identified above his or her name.

1.1 ACH PROCESSING

ACHQ and Merchant have contracted for ACHQ to provide Automated Clearing House (“ACH”) services as a Third Party Processor of ACH transactions. These transactions will be placed through a financial institution used by ACHQ who will be acting as the Originating Depository Financial Institution (“ODFI”). Merchant shall act as the Originator. ACHQ will debit funds (“Debit Entry”) for the purpose of collecting Automatic Payments from the accounts of the Merchant’s customers (“Receivers”) and/or credit funds (“Credit Entry”) for the purpose of paying the Merchant’s accounts receivable in accordance with the terms of this Agreement, the Operating Rules (“Rules”) of the National Automated Clearing House Association (“NACHA”), and applicable federal, state and local laws or regulations governing ACH transactions (collectively, “Regulations”). The terms and conditions of this Agreement do not limit Merchant’s obligation to comply with the Rules and Regulations. “Entry” or “Entries” shall mean either an ACH Credit Entry or an ACH Debit Entry.

1.2 ACCOUNT AND AUTHORIZATION

Merchant shall, at all times, maintain an account at a bank that is a member of the Federal Reserve ACH System (“Account”). Merchant expressly authorizes ACHQ to debit and/or credit the Account designated by Merchant according to the terms of this Agreement. Merchant further authorizes ACHQ to process electronic funds transfers as a Third Party Processor through the Account designated by Merchant. Merchant represents and warrants that it shall, at all times, maintain a sufficient balance in the Account to cover all obligations owed to ACHQ, including, but not limited to, all Entries originated by Merchant, returned Entries, chargebacks, fees, fines, and all other obligations owed to ACHQ and Merchant authorizes ACHQ to debit its Account for all amounts owed to ACHQ. Merchant shall bear all risk of loss, without warranty or recourse to ACHQ for the amount of any transaction, or other amounts due ACHQ (including ACHQ’s actual costs and expenses) due to ACH returns of any kind, whether for customer chargebacks or unauthorized returns, insufficient funds, administrative or corporate returns, or any other type of returns. Merchant acknowledges and expressly agrees that this authorization applies with the same force and effect to any new bank account information for Merchant that ACHQ obtains at a future date, regardless of the timing, reason or manner in which ACHQ obtains information about other bank account(s) for Merchant (including, but not limited to, bank account(s) that Merchant identifies to ACHQ or bank account(s) for Merchant that ACHQ identifies through its own lawful research or investigation), and Merchant expressly agrees that ACHQ may debit any such account held by, or on behalf of Merchant, in order to satisfy any of Merchant’s obligations to ACHQ. Merchant shall provide new Account information to ACHQ, in writing, at least 10 days prior to closing or changing the Account designated in this Agreement. This authorization shall survive the termination of this Agreement and shall continue in perpetuity until all of Merchant’s obligations to ACHQ are paid in full, including, but not limited to, those obligations described in this Agreement.

1.3 CANCELLATION

Either party may cancel this Agreement with 60 days’ written notice to the other party, subject to the terms and limitations set forth in Section 4.9 (Term and Termination). ACHQ may also immediately cancel this Agreement and immediately suspend all processing for Merchant without providing advance written notice to Merchant on any of the grounds set forth in Section 4.9.

1.4 CONSUMER CREDIT INQUIRIES

A credit report may be made in connection with this Application and Agreement. Merchant and the individuals signing this Agreement on behalf of the Merchant, including any Guarantors, authorize ACHQ, or any credit bureau or any credit reporting agency employed by ACHQ or any agents of ACHQ to investigate the references provided or any other statements or data obtained from the Merchant, or any of the above principals, for the purpose of this Application and Agreement. Merchant also authorizes ACHQ to obtain additional credit reports regarding Merchant on an annual basis, unless ACHQ, in its sole and absolute discretion, determines that it is necessary for ACHQ to periodically obtain Merchant’s credit report on a more than annual basis, in which case Merchant authorizes ACHQ to obtain such additional credit reports. Notwithstanding anything in this paragraph, Merchant authorizes ACHQ to obtain a credit report regarding Merchant if Merchant requests increased processing amounts or parameters, or if Merchant originates sporadic transactional volume.

2.0 MERCHANT RESPONSIBILITIES

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2.1 AUTHORIZATION

Merchant agrees to obtain authorization from Receivers pursuant to the requirements of the Rules and applicable Regulations prior to debiting and/or crediting Receivers’ accounts. Merchant will maintain copies of the authorizations for a period of 2 years from the termination or revocation of the authorization.

2.2 AUTHENTICATION

Merchant agrees that ACHQ may adjust processing fees and/or add authentication services without prior notice if Merchant experiences a return rate outside the NACHA return thresholds, as determined by ACHQ in its sole and absolute discretion, or if ACHQ deems the authentication process Merchant subscribes to is not adequate for standards determined by ACHQ. ACHQ at its sole and absolute discretion will determine the standards of authentication and the rate of return acceptable for Merchant. Nothing herein limits the Merchant’s obligation to comply with the Rules and all applicable Regulations.

2.3 REPRESENTATIONS REGARDING AUTHORIZATION

Merchant represents and warrants with respect to all Entries originated by Merchant and processed by ACHQ for Merchant that (1) each Receiver has authorized the debiting and or crediting of its account, (2) each Entry is for an amount agreed to by the Receiver, and (3) each Entry is in all other respects properly authorized. In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant agrees to defend, indemnify, and hold harmless ACHQ for any claims, losses, liabilities, costs, or expenses suffered or incurred (including attorneys’ fees and costs) relating to, arising out of, or involving any breach of these representations and warranties or unauthorized Entries. These representations and warranties by Merchant shall survive termination of the Agreement. Merchant acknowledges and agrees that, from time to time, another person or entity may submit or modify transactions on behalf of the Merchant, including, without limitation, owners, principals, employees, officers, accountants or other designated third parties. Such a person or entity is referred to herein as a “Merchant Administrator.” Merchant expressly agrees that ACHQ is also considered Merchant Administrator. Merchant agrees that all actions of a Merchant Administrator will be deemed to be actions by Merchant under this Agreement, and Merchant accepts full responsibility and liability for any and all acts and/or omissions of a Merchant Administrator, including, but not limited to, acts of negligence (whether active, passive, or gross negligence) and intentional or fraudulent acts.

2.4 IDENTIFYING NUMBERS

Merchant understands and agrees that ACHQ may rely solely on identifying numbers provided by Merchant to determine the bank and account of a Receiver even if the numbers identify a bank or account holder different from the one identified by Merchant. In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant shall defend, indemnify, and hold harmless ACHQ for any claims, losses, liabilities, costs, or expenses suffered or incurred (including attorneys’ fees and costs) as a result of an incorrect account or other identification.

2.5 INTENTIONALLY OMITTED

2.6 REGULATORY COMPLIANCE

Merchant bears the final responsibility to ensure that Merchant’s policies and procedures meet the requirements of the ACH Rules and all applicable Regulations. Merchant is encouraged to consult counsel regarding compliance with the Rules and Regulations whenever there is any doubt about compliance. Merchant represents and warrants that all Entries originated by Merchant and processed by ACHQ for Merchant comply with all applicable Rules and Regulations, including without limitation the following Regulations: 1) FTC Act (15 U.S.C. §§ 41, et seq.); 2) TSR (16 C.F.R. 310, et seq.); 3) Electronic Fund Transfer Act (15 U.S.C. §§ 1601, et seq.) and Regulation E (12 C.F.R 205, et seq.), if applicable; 4) Uniform Commercial Code Article 4-A, if applicable; 5) Federal Reserve Board Regulation J, if applicable; 6) the rules and sanctions laws of the Office of Foreign Assets and Control (“OFAC”); 7) Unlawful Internet Gambling Enforcement Act (31 U.S.C. §§ 5361, et seq.) and accompanying regulations (12 C.F.R. 233; 31 C.F.R. 132); 8) PACT Act (15 U.S.C. §§ 376, et seq., Jenkins Act (15 U.S.C. §§ 375, et seq. and accompanying regulations; and 9) all applicable state laws and regulations. Merchant further represents and warrants that it shall not originate any Entries that constitute (i) improper telemarketing in violation of the TSR or other applicable Regulations or Rules; (ii) sales or marketing of advance-fee credit cards in violation of the TSR or other applicable Regulations or Rules; (iii) restricted Internet gambling transactions; and/or (iv) unlawful Internet tobacco sales. Merchant represents and warrants that it will not transmit any Entries that violate the laws of the United States or any state or locality in which ACHQ or Merchant does business. These representations and warranties by Merchant shall survive termination of this Agreement. In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant shall defend, indemnify, and hold harmless ACHQ for any claims, losses, liabilities, costs, fines, or expenses suffered or incurred (including attorneys’ fees and costs) relating to, arising out of, or involving any breach of these representations and warranties or failure to comply with any applicable Rules or Regulations. In addition to its cancellation rights described elsewhere in this Agreement, ACHQ may immediately cancel this Agreement if ACHQ, its ODFI or any regulatory agency believes that Merchant is violating or has previously violated any applicable Regulation or Rule or is in breach of these representations and warranties.

2.7 TAX NAME AND ID

Merchant shall provide to ACHQ its correct and accurate tax filing name and tax identification number for the U.S. Internal Revenue Service (“IRS”). In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant bears all liability and agrees to defend, indemnify and hold harmless ACHQ and its ODFI, including all of their directors, officers, employees and affiliates, from any and all claims, liabilities, losses, damages, fines, costs or other expenses (including attorneys’ fees and costs) suffered or incurred arising out of, relating to or involving in any way Merchant’s failure to provide an accurate tax filing name or tax identification number.

2.8 TAX REPORTING OBLIGATIONS

Merchant acknowledges that, pursuant to Section 6050W of the Internal Revenue Code, ACHQ is responsible for filing with the IRS annual information returns for all reportable payment transactions to Merchant for whom ACHQ processes transactions under this Agreement. Merchant shall cooperate with ACHQ and take all reasonable steps to aid its reporting obligations and compliance with Section 6050W, including, but not limited to, provide an accurate and verifiable tax filing name and tax identification number (“TIN”) for each Merchant account. Merchant further acknowledges and agrees that, if it fails to provide an accurate tax filing name or TIN information, the IRS notifies ACHQ of a discrepancy between the information provided by Merchant and the IRS records, or if requested by the IRS for any reason, ACHQ shall be required to perform backup withholding from Merchant funding by deducting and withholding income tax in an amount based on the IRS withholding regulations at the time withholding is required from the gross amount of each reportable transaction pursuant to Section 6050W and its corresponding regulations. Merchant expressly authorizes ACHQ to withhold from Merchant’s funding or debit Merchant’s Account (or another account designated by Merchant if there are insufficient funds in the Account to cover the required withholding) for any and all backup withholding amounts required by Section 6050W and its corresponding regulations.

2.9 RECORDKEEPING REQUIREMENTS

Merchant shall keep all records of verifiable customer payment authorizations for a period of two (2) years from the date an authorization is terminated or revoked. Merchant agrees to provide copies of such documents or records to ACHQ immediately upon written request from ACHQ.

2.10 NOTICE OF ERRONEOUS UNAUTHORIZED TRANSFER

Merchant agrees to promptly and regularly review all Entries and other communication received from ACHQ and to immediately notify ACHQ if there are any discrepancies between Merchant’s records and those provided by ACHQ, the ODFI or Merchant’s bank, or with respect to any transfer not authorized by Merchant. If Merchant fails to notify ACHQ within 7 days of the date ACHQ e-mails, mails, or otherwise provides a statement of account or other report of activity to Merchant, then Merchant will be solely responsible for all losses or other costs associated with any erroneous or unauthorized transfer.

2.11 INDEMNITY

In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant agrees to defend, indemnify and hold harmless ACHQ and its ODFI, including all of their directors, officers, employees and affiliates, from and against any and all claims, losses, liabilities, costs or expenses suffered or incurred (including attorneys’ fees and costs) relating to, arising out of or involving any breach of the representations and warranties made by Merchant in this Agreement, the failure of Merchant or a Merchant Administrator to comply with the terms of the Agreement, the failure of Merchant or a Merchant Administrator to comply with the Rules, or any and all other applicable laws or Regulations, or by reason of ACHQ providing the services set forth in this Agreement. This paragraph shall survive termination of the Agreement.

2.12 BUSINESS DESCRIPTION AND PROHIBITED ACTIVITY

Merchant represents and warrants that all information in the Application and provided to ACHQ during underwriting, including the description of Merchant’s business, products, services, customers, ownership, and intended use of the services, is true, accurate, and complete, and Merchant will keep that information current. Merchant shall not use the services, directly or indirectly, for any business or activity prohibited by the Acceptable Use Policy, the Rules, ACHQ’s ODFI, or applicable Regulations, including any marijuana-related business or any business that cultivates, manufactures, distributes, or sells cannabis or cannabis-derived products that are unlawful under federal law, unless ACHQ has approved that business in advance and in writing.

Merchant shall notify ACHQ in writing at least thirty (30) days before any material change to its business, products, or services, any change in ownership of twenty-five percent (25%) or more, or any change in control. Any misrepresentation or undisclosed change is a material breach of this Agreement, entitles ACHQ to terminate this Agreement immediately under Section 4.9, and entitles ACHQ to hold funds under Section 4.11. This Section shall survive termination of the Agreement.

2.13 THIRD-PARTY PROCESSING AND KNOW YOUR CUSTOMER

Merchant shall originate Entries only for its own account and for its own customers. Merchant shall not act as a Third-Party Sender, payment facilitator, or processor, or originate Entries on behalf of any other person, unless ACHQ approves that activity in advance and in writing and Merchant executes any addendum ACHQ requires. If ACHQ approves, Merchant shall (i) perform customer identification, due diligence, and sanctions screening on every person on whose behalf it originates Entries, consistent with the Rules and the requirements of ACHQ and its ODFI, (ii) keep records of that diligence for at least five (5) years after the relationship with that person ends, and (iii) provide those records to ACHQ within five (5) business days of ACHQ’s request. Merchant’s failure to maintain or produce these records is a material breach of this Agreement. This Section shall survive termination of the Agreement.

3.0 ACHQ RESPONSIBILITIES

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3.1 ACCEPTING TRANSACTIONS

ACHQ will only be responsible for processing Entries that have arrived at its premises in proper format and on a timely basis. ACHQ will advise Merchant of any applicable cut-off time. Merchant does not have the right to cancel or amend any entry after submission to the ACH Network.

3.2 ORIGINATING TRANSACTIONS

ACHQ will use the information provided by Merchant to originate Entries to the ACH Network. Merchant acknowledges and agrees that ACHQ may reject Entries for any reason permitted or required by the Rules or applicable Regulations. Merchant also acknowledges and agrees that Entries or files may be rejected which exceed the threshold parameters identified and set for Merchant. Merchant also acknowledges and agrees that an Entry may be rejected if the Entry would cause ACHQ to violate any Federal Reserve or other regulatory risk control program, any other applicable Rule or Regulation, or ACHQ’S agreement with its ODFI. At Merchant’s request, ACHQ will make reasonable efforts to reverse, modify, or delete an Entry, but will have no responsibility for the failure to comply with that request.

3.3 RETURNED ENTRIES AND NOCS

ACHQ will apply returned Entries to Merchant’s Account when they are received. As described elsewhere in this Agreement, if Merchant does not have funds available in its designated Account sufficient to cover all returned Entries, Merchant acknowledges and agrees that ACHQ will debit any other bank account identified by Merchant to ACHQ (regardless of the timing, method or reason Merchant identified such account to ACHQ). ACHQ will create and make available to Merchant a report containing detailed information about returned Entries. If Merchant requests that the returned Entries be provided electronically, ACHQ may do so according to the Rules and Regulations regarding returned Entries. Merchant is solely responsible for all returned Entries.

3.4 SETTLEMENTS AND FINALITY

Merchant’s account will settle in accordance with the funding schedule set for Merchant. The standard settlement cycle date is the second business day from the effective Entry date. If any Entry is returned beyond the settlement date, ACHQ will, at ACHQ’s sole and absolute discretion, either apply the debit to the current day’s settlement, or debit the Merchant’s account for the amount of the returned Entry. If sufficient funds to cover returned Entries are not available in Merchant’s Account, Merchant shall immediately remit payment to ACHQ to fully cover the amount of all returned Entries. As described elsewhere in this Agreement, Merchant agrees that, to fully cover all returned Entries, ACHQ may also debit any other bank account for Merchant about which it has account information, regardless of the timing, reason or manner in which ACHQ obtained information about the other bank account(s) for Merchant (including, but not limited to, bank account(s) that Merchant identifies to ACHQ or bank account(s) for Merchant that ACHQ identifies through its own lawful research or investigation).

3.5 NO WARRANTY

Merchant acknowledges and agrees that neither ACHQ nor its ODFI has control over the conditions under which Merchant uses the payment processing system and does and cannot warrant the results obtained by such use. ACHQ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE PROCESSING AND/OR ACHQ’S SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS OR THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ACHQ DOES NOT WARRANT THAT OPERATION OF THE PAYMENT PROCESSING SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. MERCHANT ACKNOWLEDGES THAT THE PAYMENT PROCESSING SYSTEM IS PROVIDED FOR USE BY MERCHANT “AS IS.” MERCHANT FURTHER ACKNOWLEDGES THAT ACHQ BEARS NO RESPONSIBILITY FOR THE MERCHANT WEB SITE(S). MERCHANT ACKNOWLEDGES THAT AN AUTHORIZATION FOR PAYMENT IS NEITHER A WARRANTY THAT THE PERSON PRESENTING THE AUTHORIZATION IS THE RIGHTFUL ACCOUNT HOLDER NOR A PROMISE OR GUARANTEE BY ACHQ THAT IT WILL PAY OR ARRANGE FOR PAYMENT TO MERCHANT FOR THE AUTHORIZED TRANSACTION. MERCHANT ACKNOWLEDGES THAT AN AUTHORIZATION DOES NOT PREVENT A SUBSEQUENT REVERSAL OF A PREVIOUSLY AUTHORIZED TRANSACTION PURSUANT TO THIS AGREEMENT.

3.6 LIMITS OF LIABILITY

ACHQ will be responsible for the performance of ACH services as a Third Party Processor in accordance with the terms of this Agreement and the Rules and applicable Regulations. ACHQ will not accept responsibility for errors, acts, or failure to act by others, including but not limited to, banks, communication providers, common carriers, or clearing houses through which Entries may be passed and or originated. ACHQ is not responsible for any loss, liability or delay caused by fires, earthquakes, war, civil disturbances, power surges or failures, acts of governments, labor disputes, failures in communication networks, intervening negligent, criminal, or tortious acts of third parties who are not within ACHQ’S control or employ, legal constraints or other events beyond the control of ACHQ. ACHQ shall not be liable to Merchant for any delays in receipt or transmittal of funds or errors in credit or debit entries caused by third parties, including, without limitation, the Automated Clearing House, any depository financial institution, or any agent of Merchant.

4.0 ADDITIONAL TERMS AND CONDITIONS

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4.1 FEES AND PAYMENT

Notice of any changes to the existing fee structure as stated in this Agreement (including new or increased fees) will be made in writing to Merchant within 30 days of such changes or any new fees becoming effective. Merchant has the right to cancel the Agreement in writing at that time. Continued use of the services provided by ACHQ after notice of fee changes is provided to Merchant shall constitute Merchant’s agreement to any new or changed fees. In addition to the fees set forth in the Application, in any ACHQ proposal or pricing schedule accepted by Merchant, or in any written fee notice provided under this Section (collectively, the “Fee Schedule”), Merchant shall pay the fees to ACHQ set forth below: Return Fees: If Merchant returns a transaction initiated by ACHQ and the transaction is in accordance with this Agreement, Merchant will be charged a $35.00 return fee per occurrence. ACHQ, in its sole and absolute discretion, may suspend settlements for Merchant until payment for returned Entries or return fees is fully remedied. Chargeback and High Return Rate Fees: If, at the time Merchant is billed for chargebacks, Merchant’s High Risk or Unauthorized Return Rate exceeds 0.5% using a NACHA approved method of calculation, a high-risk surcharge of $15.00 will be added to each chargeback received during that billing period and an additional 1.0% discount rate will be added to Merchant’s Account, to be charged retroactively for the previous 30 days. Attorneys’ Fees: If Merchant becomes obligated to pay ACHQ’s attorneys’ fees pursuant to any provision in of this Agreement, such fees shall include in-house counsel fees at the rate of $400 per hour, as well as the actual hourly rate for outside counsel. Payment: Merchant agrees that ACHQ may collect any and all amounts due by Merchant, including, without limitation, all fees set forth in the Application and this Agreement, returned Entries, chargebacks, refunds or credits issued to Receivers, fines, damages or costs and expenses incurred by ACHQ to perform services for Merchant (including attorneys’ fees and costs to enforce any of Merchant’s obligations under this Agreement), by billing Merchant, debiting Merchant’s Account, debiting the Reserve Account or debiting any other bank account for Merchant about which ACHQ obtains account information. Merchant shall provide ACHQ the information necessary to collect all amounts owed by Merchant under this Agreement or the Rules or applicable Regulations. Merchant will be responsible for any and all attorneys’ fees and other costs and expenses ACHQ may incur in collecting any fees or other amounts Merchant owes to ACHQ.

4.2 VOLUME ANALYSIS

ACHQ will routinely analyze Merchant origination and return activity. In the event Merchant exceeds a return rate outside the maximum return rates determine by NACHA Rules, ACHQ shall have the right to place all of the provisional or final credit provided to Merchant for each Debit Entry originated by it into the Reserve Account, to be held, applied, and released in accordance with Section 4.11. In addition to all other Merchant accounts from which ACHQ is authorized under this Agreement to obtain payment of funds owed by Merchant, ACHQ shall have the right to offset and pay itself from the account described in this paragraph for all returned Entries, chargebacks, refunds or credits issued, fees, damages (including liquidated damages), or other costs and expenses (including attorneys’ fees and costs) that may arise out of ACH processing for Merchant and for which Merchant has agreed to pay ACHQ pursuant to the terms of this Agreement.

4.3 CONFIDENTIALITY

Each party represents, warrants, and mutually agrees that all information concerning the other party which comes into its possession during the term of this Agreement shall be maintained as confidential and shall not be used or divulged to any other party except as necessary to permit the activities contemplated under this Agreement or as required by law. Notwithstanding the foregoing, it shall not be a breach of this Confidentiality provision for ACHQ to disclose Merchant’s confidential information if required to do so under law or in a judicial or other governmental investigation or proceeding, provided Merchant has been given prior notice to the extent not prohibited or requested by the government agency or Court Order and ACHQ has sought all available safeguards against widespread dissemination prior to such disclosure.

Nothing in this Agreement requires ACHQ to disclose, and ACHQ shall not disclose, any suspicious activity report, any information that would reveal the existence of a suspicious activity report, or any confidential supervisory information, as provided by 31 U.S.C. 5318(g)(2) and other applicable law.

4.4 GOVERNING LAW AND VENUE

This Agreement, all questions related to the Agreement’s validity, interpretation, performance, execution and inducement, and all claims related to, arising under, or involving in any way this Agreement, the services by ACHQ, or Merchant’s business relationship with ACHQ, or Merchant’s business relationship with ACHQ are governed by, and shall be construed under, the laws of the State of Florida without regard for the principles and conflicts of law. All such claims shall exclusively be adjudicated in a State or Federal Court located in Sarasota County, FL, which the parties agree has exclusive personal jurisdiction over them and is the proper venue. The parties waive any objections to personal jurisdiction or venue in Sarasota County, FL. The prevailing party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs (including expert witness fees and costs) incurred in the matter.

4.5 JURY TRIAL WAIVER

ACHQ AND MERCHANT BOTH IRREVOCABLY WAIVE A TRIAL BY JURY UNDER BOTH STATE AND FEDERAL LAW IN ANY ACTION, LAWSUIT, OR DISPUTE ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, ACHQ’S SERVICES, OR THE TRANSACTIONS RELATING TO SUBJECT MATTER OF THIS AGREEMENT.

4.6 AGREEMENT MODIFICATION

ACHQ may modify the terms and conditions of this Agreement upon sixty (60) days’ written notice. Use of services after any such modification will evidence acceptance of the modification(s).

Notwithstanding the foregoing, ACHQ may modify this Agreement effective immediately, or on such shorter notice as is practicable, where the modification is required by the Rules, ACHQ’s ODFI, or applicable Regulations.

4.7 NOTICES

Each notice required by this Agreement shall be in writing and will be effective when sent unless notice is provided by First Class Mail, return receipt requested, which shall be effective when received. Notice may be provided by: (1) To Merchant: (a) by First Class Mail, return receipt requested, at the Merchant’s business address listed in this Agreement or on the ACHQ Enrollment Form. (b) by facsimile at Merchant’s fax number currently on file. (c) by electronic mail at the Merchant’s email address currently on file. (d) by posting notice to the Merchant Portal, which shall be effective at the next Merchant login to the Merchant Portal. (2) To ACHQ: (a) by First Class Mail, return receipt requested to 1990 Main St, Suite 750 Sarasota, FL 34236: or (b) by email to support@achq.com with a copy to compliance@achq.com

4.8 EXCLUSIVE AGREEMENT

Intentionally Omitted

4.9 TERM AND TERMINATION

This Agreement is effective from the date hereof and shall continue for a term of one (1) year. Thereafter, this Agreement shall be automatically renewed for consecutive one (1) year periods unless either party gives the other written notice of non-renewal at least 60 days prior to the expiration date of the current term. This Agreement may be terminated by ACHQ at any time with sixty (60) days’ written notice or as otherwise provided by the terms of this Agreement. If Merchant wants to terminate the Agreement before the initial one-year term or any renewal term has expired, Merchant shall give ACHQ sixty (60) days’ written notice of Merchant’s intent to terminate the Agreement. ACHQ must approve the Merchant’s request for early termination in writing, which approval will not be unreasonably withheld.

Notwithstanding ACHQ’s rights to cancel this Agreement as stated elsewhere in this Agreement, ACHQ may also immediately terminate this Agreement and immediately suspend all processing for Merchant without providing advance written notice to Merchant: (1) upon the request of ACHQ’s ODFI or any regulatory agency (regardless of the reason for the request), (2) if ACHQ, its ODFI or any regulatory agency believes that Merchant has breached this Agreement, has breached any representations and warranties made in this Agreement, is violating or has previously violated any applicable Regulations or Rules and/or has initiated any unauthorized Entries, (3) if ACHQ is unable to process transactions for Merchant for any reason that is out of ACHQ’s control or ACHQ no longer has the ability to process transactions for Merchant, (4) if Merchant becomes insolvent, makes an assignment for the benefit of creditors, files or has filed against it a petition in bankruptcy, or has a receiver or similar officer appointed, (5) upon a change in control of Merchant not approved in writing by ACHQ, or (6) if Merchant has made any misrepresentation in the Application, in underwriting, or under Section 2.12.

Immediately upon termination of the Agreement, whether by expiration or otherwise and whether or not the Agreement was terminated for cause, ACHQ’s obligation to provide services under the Agreement shall cease, and any unpaid amounts due and owing by Merchant shall become immediately due and payable. Payment for any services rendered or any other obligation or liability owing at the time of termination shall not be affected by termination of this Agreement. At the time of termination, for any reason and whether or not a Reserve Account was previously required, ACHQ will place all unsettled funds and all funds due to be settled to Merchant into a Reserve Account, to be held, applied, and released solely in accordance with Section 4.11 (Reserve Account).

4.10 DAMAGE WAIVER

ACHQ will not be liable to Merchant for any special, consequential, indirect, or punitive damages whether or not: (1) any claim for these damages is based on tort or contract law, or (2) either party knew or should have known the likelihood of these damages in any situation. In no event will ACHQ’s aggregate liability to Merchant arising out of or relating to this Agreement exceed the total fees paid by Merchant to ACHQ in the three (3) months preceding the event giving rise to the claim. ACHQ makes no representations or warranties other than those expressly made in this Agreement.

4.11 RESERVE ACCOUNT

(a) Establishment and funding. ACHQ may require a Reserve Account at onboarding, at any time during the term under Section 4.2 or Section 4.12, and in every case upon termination under Section 4.9. ACHQ may fund the Reserve Account by accepting a wire transfer from Merchant, by deducting a percentage of each debit origination until the required reserve amount is reached, by withholding settlement funds, or by debiting any account of Merchant described in Section 1.2. Merchant acknowledges and agrees that its Reserve Account may be commingled with reserve funds held for other merchants and that no interest will accrue or be paid on Reserve Account funds.

(b) Minimum hold. All funds placed in the Reserve Account will be held for a minimum of two (2) years following the later of (i) the last debit, credit, or return Entry on Merchant’s account, or (ii) the date this Agreement terminates. The two-year period is a minimum holding period. It is not a release date, and the passage of two years does not by itself entitle Merchant to any release of funds.

(c) Release at ACHQ’s discretion. After the minimum hold, any release of Reserve Account funds is at ACHQ’s sole discretion, exercised in good faith. ACHQ may continue to hold any or all Reserve Account funds for so long as ACHQ determines that any return, chargeback, refund, claim, fine, assessment, indemnity obligation, audit, investigation, or inquiry by ACHQ’s ODFI, NACHA, or any regulatory or law enforcement agency relating to Merchant is pending or reasonably anticipated. ACHQ may condition any release on Merchant’s completion of every outstanding request under Sections 2.9, 2.13, and 4.13. Merchant may request a release review in writing after the minimum hold has run. Any release will be of the balance remaining after all offsets under Section 4.11(d), and ACHQ’s failure to respond to a request is not consent to release.

(d) Offset and recoupment. ACHQ may offset, recoup, and pay itself from the Reserve Account for any and all amounts Merchant owes or may owe under this Agreement, whether liquidated, unliquidated, or contingent, and whether arising before or after termination, including returned Entries, chargebacks, refunds and credits, fees, fines, penalties, and assessments imposed by ACHQ’s ODFI, NACHA, or any regulatory agency, Merchant’s indemnity obligations under Sections 2.3, 2.4, 2.6, 2.7, 2.11, 2.12, and 2.13, and ACHQ’s costs of investigation, audit, compliance review, and reconstruction of customer identification or transaction records, together with attorneys’ fees and costs (including in-house counsel fees at the rate stated in Section 4.1). These rights are in addition to every other right of ACHQ to collect amounts owed by Merchant.

(e) Ownership of funds. Until all amounts owed by Merchant and all of its obligations, including its obligation to pay all returns, are paid to ACHQ in full, all funds in the Reserve Account shall be considered to be held by ACHQ for ACHQ’s sole interest, benefit, and protection, shall be considered to be the property of ACHQ, and shall not be considered to be held in trust for, held for the benefit of, or a deposit of Merchant, or an asset or property of Merchant. ACHQ owes Merchant no fiduciary duty with respect to Reserve Account funds.

(f) Security interest. To secure all of its obligations under this Agreement, Merchant grants ACHQ a security interest in the Reserve Account, all funds held in it, all settlement funds in ACHQ’s possession or control, and all proceeds of the foregoing. Merchant authorizes ACHQ to file any financing statement necessary to perfect this security interest. Merchant shall notify ACHQ in writing within two (2) business days of any insolvency, assignment for the benefit of creditors, bankruptcy, or receivership proceeding involving Merchant. ACHQ’s rights under this Section survive any such proceeding to the fullest extent permitted by law.

(g) Survival. This Section shall survive termination of the Agreement until ACHQ has released or applied all Reserve Account funds.

4.12 FUNDING POLICY

Merchant acknowledges and agrees that funding for each origination will be set by ACHQ at ACHQ’s sole and absolute discretion. Unless expressly agreed to in writing the amount disbursed will be the origination amount less returned items and any reserve amount as required. ACHQ reserves the right to change the funding schedule, average balance requirements or reserve requirements at its sole and absolute discretion for any Merchant regardless of SEC type.

Any reserve required under this Section is a Reserve Account governed by Section 4.11.

4.13 AUDIT REQUIREMENTS

ACHQ and its ODFI shall have the right to audit Merchant concerning its compliance with this Agreement, the Rules, and applicable Regulations. Upon request, Merchant shall provide, within five (5) business days, all records ACHQ or its ODFI reasonably requests, including authorizations, customer identification and due diligence records for Merchant and for every person on whose behalf Merchant originates Entries, customer and transaction records, and policies and procedures, and shall permit on-site inspection on reasonable notice. Merchant shall bear the cost of any audit that identifies a material breach of this Agreement or the Rules. Merchant’s failure to cooperate fully is a material breach of this Agreement. This Section shall survive termination of the Agreement for five (5) years.

4.14 CUSTOMER SERVICE

Merchant agrees to maintain, support and staff a customer service line with a U.S. domiciled telephone number during normal U.S. business hours. If Merchant fails to maintain a working customer service telephone line, then ACHQ will, at its sole discretion, process customer services call on behalf of Merchant at a charge of $5.00 per inbound/outbound call and $5.00 per refund processed.

4.15 NON-SOLICITATION

Merchant agrees that, without ACHQ’s prior written consent, it will not, for a period of one (1) year from the date this agreement is terminated, directly or indirectly solicit for employment, or employ any person who is now employed by ACHQ.

4.16 ENTIRE AGREEMENT

This Agreement makes up the entire Agreement between the parties concerning ACH services and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions whether oral or written of the parties, and there are no warranties, representations and/or agreements among the parties in conjunction with the subject matter hereof except as set forth in this Agreement. There are no third-party beneficiaries of this Agreement.

4.17 SEVERABILITY

In the event any provision of this Agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, only that provision shall be severed from this Agreement and the remaining provisions shall continue in force, provided that each Party preserves the substantial benefits of the bargain contemplated in this Agreement.

4.18 INTERPRETATION; WAIVER

Any waiver by a party of a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach. The parties agree that, should any provision or term of this Agreement require interpretation or construction, this Agreement will be interpreted or construed without any presumption that the provisions of this Agreement are to be construed against the party that prepared this Agreement.

4.19 ASSIGNMENT

ACHQ shall have the right to assign this Agreement, including its rights and performance obligations under the Agreement, to any corporation or other entity which ACHQ may hereafter merge or consolidate, or to which ACHQ may transfer all or substantially all of its assets provided such corporation or other entity assumes all of ACHQ’S obligations hereunder. Upon assignees or transferee’s assumption of ACHQ’S obligations pursuant to this Agreement, ACHQ shall have no further liability to Merchant and Merchant shall look solely to any assignee or transferee for performance of any and all obligations arising under or related to this Agreement.

4.20 EXECUTION IN COUNTERPARTS’ COPIES

This Agreement, including all Exhibits and Addendums thereto (which are incorporated as part hereof) may be executed in the original or by facsimile or e-mail in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile and photocopies of this Agreement shall be considered originals for all purposes, including, but not limited to, any court or arbitration proceedings. Merchant acknowledges that they may not receive a countersigned Agreement, exhibits or addendums from ACHQ unless such countersigned Agreement is requested by Merchant in writing. Acceptance of all terms and conditions is upon ACHQ’s receipt of the agreement executed by Merchant.

4.21 BINDING CONTRACT

This Agreement becomes binding on Merchant when Merchant signs or electronically accepts the Application or this Agreement, and on ACHQ when ACHQ approves the Application, as evidenced by ACHQ’s execution, written notice of approval, or commencement of processing for Merchant, whichever occurs first.

4.22 ELECTRONIC ACCEPTANCE AND VERSION

Merchant may accept this Agreement electronically, and Merchant’s electronic acceptance has the same force and effect as a handwritten signature. The version of this Agreement that governs is the version posted at achq.com/legal, with its revision date, on the date Merchant accepts it, as later modified under Section 4.6. ACHQ will keep a record of the version Merchant accepted.

4.23 SURVIVAL

Sections 1.2, 2.3, 2.4, 2.6, 2.7, 2.9, 2.10, 2.11, 2.12, 2.13, 3.5, 3.6, 4.1, 4.3, 4.4, 4.5, 4.9, 4.10, 4.11, 4.13, 4.15, 4.17, 4.18, 4.22, 5.0, and 6.0, and any other provision that by its nature is intended to survive, shall survive termination or expiration of this Agreement.

5.0 PERSONAL GUARANTY

To induce and in consideration of ACHQ’s acceptance of the Merchant Application and this Agreement, the undersigned absolutely and unconditionally guarantees to ACHQ full and prompt payment and performance when due of each and every condition and obligation of Merchant under this Application and Agreement, including all exhibits and amendments thereto, and including all obligations under Sections 2.11 and 4.11 whether arising before or after termination. The undersigned guarantor(s) further acknowledges and agrees to pay all expenses of collection on this guaranty, including reasonable attorneys’ fees incurred by reason of the default of the Merchant or the default of the guarantor(s). The undersigned guarantor(s) waives prior demand on Merchant. ACHQ shall not be required to first proceed against Merchant, the Reserve Account, or any other security to enforce any other remedy before proceeding against the undersigned personal guarantor(s). If there is more than one guarantor, their obligations are joint and several.

This is a continuing and irrevocable guaranty which shall not be discharged or affected by the death of the undersigned, or by the insolvency, assignment for the benefit of creditors, bankruptcy, or dissolution of Merchant, shall bind heirs, administrators, representatives and assigns and may be enforced by or for the benefit of any other successor of ACHQ. This personal guaranty shall continue until all obligations of Merchant under this Agreement, and any addendum or amendment thereto, have been paid and performed in full, although enforcement may be sought subsequent to any termination.

6.0 THIRD-PARTY SENDER CUSTOMER/ORIGINATOR ACKNOWLEDGMENT

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Merchant confirms and agrees that it has authorized ACHQ (“TPS”) to act as Merchant’s agent in processing ACH Entries for Merchant, and that TPS will establish one or more clearing accounts with, and submit ACH Entries on behalf of Merchant to one or more originating depository financial institutions (each, an “ODFI”). Merchant: (i) assumes the responsibilities of and makes the warranties of an Originator under the Operating Rules of the National Automated Clearing House Association (the “Rules”) and agrees to reimburse ODFI for returns, reversals, adjustments, reclamations, and warranty claims and responsibilities related to Merchant’s ACH Entries; (ii) agrees to comply with the Rules, including but not limited to the requirements of Article Two (Rights and Responsibilities of ODFIs, Their Originators and Third Party Senders), Rule 2.15 (Obligations of Third-Party Senders, and of ODFIs and Originators that Use Third Party Senders), and if international ACH Entries are initiated by Merchant, the Rules applicable to IAT ACH Entries, (iii) agrees to comply with all applicable state and federal laws, rules and regulations, including but not limited to sanction laws administered by the Office of Foreign Assets Control (“OFAC”), the Electronic Funds Transfer Act, the Unlawful Internet Gambling Enforcement Act and Federal Reserve Board Regulation E (the foregoing and the ACH Rules are, collectively, the “Applicable Rules”); and (iv) acknowledges that ACH Entries may not be initiated that violate the laws of the United States, including but not limited to the sanctions laws, regulations, and orders administered by OFAC, laws, regulations, rules, and orders administered by the Financial Crimes Enforcement Network (“FinCEN”) (as such terms are defined below), and any state laws, regulations, or orders applicable to the providers of ACH payment services. Merchant represents and warrants as to each ACH Entry that it has obtained the necessary authorizations under the Rules and Applicable Rules and that it shall not initiate any funds transfer after the authorization for the same has been revoked (or the agreement between Merchant and TPS has been terminated). With respect to each IAT Entry TPS sends to ODFI on behalf of Merchant, Merchant represents and warrants to ODFI that such IAT Entry is in compliance with United States law, including, but not limited to, rules promulgated and programs administered by OFAC and FinCEN, that no such IAT Entry violates United States law, including, but not limited to, rules promulgated and programs administered by OFAC and FinCEN, that neither TPS nor the Merchant are acting on behalf of or transmitting funds to any party subject to OFAC sanctions and that such IAT Entry complies with the laws and payment system rules of the receiving country. Merchant acknowledges that ODFI and other parties must comply with the Rules and United States law for IAT Entries. The performance by each of these parties, including ODFI, of obligations with respect to IAT Entries may cause delays in processing, settlement, and/or availability of IAT Entries. Merchant waives and releases ODFI from any liability or obligation, including, but not limited to, funds availability obligations, caused by or arising out of any such delay associated with IAT Entries. Merchant understands that ODFI has the right to: (i) review, monitor, and audit Merchant’s ACH transactions, processes, and procedures for compliance with this Agreement and the Rules; (ii) restrict or limit the amount or type of ACH Entries processed for Merchant; and (iii) suspend, discontinue, or terminate ACH processing based on its assessment of the risk posed to the ODFI and/or the breach or termination of its agreement with TPS. Merchant is responsible for the results of using a TPS, the services, and for the accuracy and adequacy of the data Merchant or TPS provides. Merchant authorizes ODFI to act on any instruction which has been or reasonably appears to have been sent by TPS or Merchant, including but not limited to funds transfer instructions. ODFI is not obliged to take any further steps to confirm or authenticate such instructions and will act on them without getting further confirmation. Merchant understands that if it or the TPS provides ODFI with incorrect information or if there is any error in the instruction it accepts full responsibility for losses resulting from any of the errors, duplication, ambiguities, or fraud in the information that was provided to ODFI. ODFI is not responsible to third parties (such as, but not limited to, third party service providers and the third parties to whom wire or ACH debit or credits are transmitted hereunder) and Merchant shall defend, indemnify, and hold ODFI harmless from, the actions or omissions of TPS, or any claim made against ODFI arising out of Merchant’s use of the services, breach of this Agreement, or breach of any warranty under the Rules. IN NO EVENT WILL ODFI BE LIABLE OR RESPONSIBLE FOR, AND TPS AND MERCHANT BEAR ALL RISK ASSOCIATED WITH, FOREIGN EXCHANGE CONVERSION AND ANY GAINS AND LOSSES RESULTING FROM THE CONVERSION OF CURRENCIES IN CONNECTION WITH ANY ENTRY. This addendum shall survive the termination of the agreement between TPS and ODFI. Notwithstanding anything to the contrary elsewhere in the Agreement between TPS and Merchant, ODFI shall be considered an intended beneficiary of this Acknowledgment and is entitled to enforce its terms. This Acknowledgment is agreed to in consideration of ODFI’s agreement to serve as ODFI. Merchant waives notice of the ODFI’s acceptance of this Acknowledgment. Notice with Respect to Non-Consumer ACH Wholesale Credit Transactions and UCC Article 4A (1) Merchant Entries may be transmitted through the Automated Clearing House; (2) The rights and obligations of the Originator with respect to such payments shall be construed in accordance with and governed by the laws of the State of Florida unless it has been otherwise agreed that the law of some other state shall govern; (3) Credit given by a Receiving Depository Financial Institution (RDFI) with respect to an Automated Clearing House (ACH) credit entry is provisional until the RDFI receives final settlement for such entry through a Federal Reserve Bank or as otherwise provided for under Article 4A; and (4) If a RDFI does not receive such final settlement or payment, you are hereby notified and agree that the RDFI is entitled to a refund from the Receiver the amount of the credit to the Receiver’s account, and the party making payment via such entry (i.e. the originator of the entry) shall not be deemed to have paid the amount of such entry.

By accessing or using the payment processing services (the "Payment Services") provided by ACHQ, Inc., you agree to comply with the terms and conditions of this Acceptable Use Policy.

[1] Restricted Activities

 

• Customers Who Pose Reputational Risk:

• Including, but not limited to:
• Payday Lenders (state mandated usury laws)
• Firearms/Ammunition Sales
• Fireworks Sales
• Predatory Lending Businesses
• Businesses with practices that can be construed to be unfair or deceptive
• Cultivators, manufacturers, or sellers of a controlled substance (including marijuana)
• Drug Stores and Pharmacies
• Currency Exchanges
• Call lines
• “Chat” or “Gossip” lines
• Horoscopes and Fortune telling
• Dating & Escort Services
• Internet Gambling
• Sweepstakes
• Sports forecasting / Odds Making / Lotteries
• Off-Track Betting
• Multi-level Marketing

 

• Sexually Oriented and Pornographic Businesses, Materials & Services

• Adult Telephone Conversations/Audio Text (900 Numbers)
• Adult Book and Video Stores
• Adult Novelties
• Adult At-Home Parties (i.e. Passion Parties)
• Gentlemen’s Clubs
• Massage Parlors

 

• Customers Whose Product / Service May be Illegal Based on Local, State, or Federal Regulations
  • Including, but not limited to:

• Age-Restricted Products (i.e. alcohol) sold via e-commerce without proper means of age verification
• Tobacco Products sold via e-Commerce (without requiring or proper means to validate age)
• Prescription Medications sold via e-Commerce (without requiring or proper means to validate a prescription
• Wire Transfers marketed via eCommerce (without proper Anti-Money laundering policies / practices)

 

• Customers Whose Domiciled or Home Country is an OFAC Sanctioned Country

[2] [Intentionally Left Blank]

[3] Actions by ACHQ

If, in our sole discretion, we believe that you may have engaged in any violation of this Acceptable Use Policy, we may (with or without notice to you) take such actions as we deem appropriate to mitigate risk to ACHQ and any impacted third parties and to ensure compliance with this Acceptable Use Policy. Such actions may include, without limitation:

• a. Blocking the settlement or completion of one or more payments;
• b. Suspending, restricting or terminating your access to and use of the Payment Services;
• c. Terminating our business relationship with you, including termination without liability to ACHQ of any payment service agreement between you and ACHQ;
• d. Taking legal action against you;
• e. Contacting and disclosing information related to such violations to (i) persons who have purchased goods or services from you, (ii) any banks or regulatory agencies involved with your business or transactions, (iii) law enforcement or regulatory agencies, and (iv) other third parties that may have been impacted by such violations; or
• f. Assessing against you any fees, penalties, assessments or expenses (including reasonable attorneys’ fees) that we may incur as a result of such violations, which you agree to pay promptly upon notice.

[4] Amendments

This Acceptable Use Policy may be amended by ACHQ at any time by posting a new version of it to our website. By accessing or using the Payment Services after a new version is posted, you agree to all amendments reflected therein. Last revised: August 12, 2020

  Last Update: August 19, 2020   This policy describes how ACHQ delivers communications to you electronically. We may amend this policy at any time by posting a revised version on our website. The revised version will be effective at the time we post it. In addition, if the revised version includes a substantial change, we will provide you with 30 days’ prior notice by posting notice of the change on the “Policy Updates” page of our website.  

Electronic delivery of communications

  You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, "Communications") that we provide in connection with your ACHQ branded accounts ("Account") and your use of our services. Communications include:

• agreements and policies you agree to (e.g., the ACHQ Payment Services Agreement), including updates to these agreements or policies;
• annual disclosures, including prospectuses and reports for disbursments
• transaction receipts or confirmations
• Account statements and history
• federal and state tax statements we are required to make available to you; and
• any other Account, record, or transaction information.

We will provide these Communications to you by posting them on the ACHQ website and/or by emailing them to you at the primary email address listed in your ACHQ profile.  

Hardware and software requirements

  In order to access and retain electronic Communications, you will need the following computer hardware and software:

• a computer with an Internet connection;
• a current web browser that includes 128-bit encryption (e.g. Internet Explorer version 6.0 and above, Firefox version 2.0 and above, Chrome version 3.0 and above, or Safari 3.0 and above) with cookies enabled;
• Adobe Acrobat Reader version 8.0 and above to open documents in .pdf format;
• a valid email address (your primary email address on file with ACHQ); and
• sufficient storage space to save past Communications or an installed printer to print them.

We will notify you if there are any material changes to the hardware or software needed to receive electronic Communications from ACHQ. By giving your consent you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. You may print or save a copy of these Communications for your records as they may not be accessible online at a later date.  

How to withdraw your consent

  You may withdraw your consent to receive Communications electronically by writing to us at "ACHQ, 1990 Main Street, Suite 750, Sarasota, FL 34236", or by contacting us via the "Contact Us" link at the bottom of each page of the ACHQ website. If you fail to provide or if you withdraw your consent to receive Communications electronically, ACHQ reserves the right to either deny your application for an Account, restrict or deactivate your Account, close your Account and any sub-account or charge you additional fees for paper copies.   After you consent to receive Communications electronically, you may withdraw your consent to receive IRS Form 1099-K electronically by contacting us as described above. You will continue to receive all your other Communications electronically, but we will send your Form 1099-Ks to you by U.S. mail.  

Requesting paper copies of electronic Communications

  If, after you consent to receive Communications electronically, you would like a paper copy of a Communication we previously sent you, you may request a copy within 180 days of the date we provided the Communication to you by contacting us as described above. We will send your paper copy to you by U.S. mail. In order for us to send you paper copies, you must have a current street address on file as your “Home” address in your ACHQ profile. If you request paper copies, you understand and agree that ACHQ may charge you a Records Request Fee for each Communication. The Records Request Fee will not be charged if you request a Form 1099-K in paper form; for all other Communications, the Records Request Fee is set out in Section 8 of the User Agreement.  

Updating your contact information

  It is your responsibility to keep your primary email address up to date so that ACHQ can communicate with you electronically. You understand and agree that if ACHQ sends you an electronic Communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, ACHQ will be deemed to have provided the Communication to you.   Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add ACHQ to your email address book so that you will be able to receive the Communications we send to you.   You can update your primary email address or street address at any time by logging into the ACHQ website, going to "My Account", and selecting the "Profile" tab. If your email address becomes invalid such that electronic Communications sent to you by ACHQ are returned, ACHQ may deem your Account to be inactive, and you will not be able to transact any activity using your ACHQ Account until we receive a valid, working primary email address from you.  

This ACHQ Partner & Reseller Agreement (“Agreement”) is a legally binding agreement between you (“Partner,” “you,” or “your”) and ACHQ, Inc. (“ACHQ,” “we,” “us,” or “our”). It governs your participation in ACHQ’s sales agent, ISO, and reseller program (the “Partner Program”). By submitting a Partner application, accepting an ACHQ commission schedule, accepting referral commissions, or otherwise participating in the Partner Program, you agree to be bound by this Agreement.

This Agreement does not apply to embedded platform partners using the ACHQ Embed Platform Services. Those relationships are governed by the ACHQ Embed Platform Agreement.

ACHQ may amend this Agreement at any time by posting the amended version on www.achq.com, sending notice by email, or by any other reasonable means. The amended Agreement is effective when posted or as of the date indicated. Your continued participation in the Partner Program after the effective date constitutes your acceptance of the amended Agreement.

1. Role and Relationship

1.1 Referral Role. Partner is an independent referral source and sales organization. Partner’s role is limited to (a) identifying prospective merchants, (b) introducing them to ACHQ, and (c) supporting the merchant relationship as a marketing channel. Partner has no authority to underwrite, approve, decline, price, board, suspend, terminate, or otherwise control any merchant relationship with ACHQ. Partner has no authority to bind ACHQ, set or modify ACHQ pricing or terms, accept funds on ACHQ’s behalf, or make representations beyond the marketing materials ACHQ provides or approves in writing.

1.2 Independent Contractor. Partner and ACHQ are independent entities. This Agreement does not create any partnership, joint venture, agency, franchise, employment, or fiduciary relationship between the parties. Neither party is the agent of the other, and neither party may bind the other to any commitment with any third party.

1.3 Merchant Relationship. Every merchant that contracts with ACHQ does so directly under the ACHQ Payment Services Agreement and the ACHQ Privacy Policy, as those agreements may be amended from time to time. ACHQ is the sole counterparty to each merchant for ACH processing services. Partner has no rights in, no claim to, and no control over any merchant account, merchant funds, or merchant data. Partner does not become an agent of any merchant by referring that merchant to ACHQ.

1.4 ACHQ Discretion. ACHQ retains sole and absolute discretion over (a) whether to approve, decline, board, or terminate any merchant, (b) the rates and fees charged to any merchant, (c) the underwriting requirements applied to any merchant, (d) credit, reserve, hold, return, and chargeback decisions, (e) the products, services, and features made available to any merchant, and (f) all other decisions regarding the merchant relationship. Partner acknowledges that ACHQ may decline any referral, including referrals already submitted, for any reason or no reason.

2. Partner Activities

2.1 Permitted Activities. Subject to this Agreement, Partner may (a) market the ACHQ services to prospective merchants in the United States, (b) refer prospective merchants to ACHQ through ACHQ’s designated referral or application channels, (c) use ACHQ marketing assets and brand materials in accordance with ACHQ’s brand guidelines and any written approvals, and (d) provide post-sale relationship support consistent with this Agreement.

2.2 Prohibited Activities. Partner shall not, and shall not permit any of Partner’s employees, contractors, agents, or sub-agents to (a) make any representation, warranty, or guarantee about ACHQ’s services beyond what ACHQ has expressly approved in writing, (b) quote, modify, or promise any rate, fee, term, settlement timeline, approval timeline, processing limit, or feature that has not been expressly authorized by ACHQ, (c) collect, retain, store, transmit, or use any merchant’s bank account number, full social security number, full tax identification number, sensitive credit information, or any other sensitive personal or financial information except as expressly permitted in writing by ACHQ, (d) submit any application, document, signature, or information on a merchant’s behalf that is forged, altered, inaccurate, incomplete, or misleading, (e) split, layer, or factor a single merchant’s volume across multiple applications or entities to evade underwriting limits, (f) refer any merchant engaged in any business listed on the ACHQ Acceptable Use Policy or otherwise prohibited or restricted under Applicable Law, (g) use the ACHQ name, logo, marks, or any confusingly similar designation in a manner that implies employment, agency, ownership, exclusivity, endorsement, or partnership beyond what this Agreement creates, (h) operate any website, landing page, email, advertisement, or social media account that misrepresents Partner’s relationship with ACHQ, (i) communicate with merchants in a manner that disparages ACHQ, its financial institution partners, or its services, or (j) circumvent, attempt to circumvent, or assist any third party in circumventing this Agreement.

2.3 Brand Use. ACHQ grants Partner a limited, non-exclusive, non-transferable, revocable license to use the ACHQ name, logo, and approved marketing materials during the term of this Agreement solely to perform Partner’s obligations under this Agreement. All goodwill arising from Partner’s use of the ACHQ marks inures to ACHQ. Partner shall comply with all ACHQ brand guidelines and shall promptly cease any use that ACHQ objects to in writing.

2.4 Co-Branded and Custom Materials. Any co-branded materials, landing pages, or partner-specific content must be approved by ACHQ in writing before publication. ACHQ may revoke approval at any time by written notice, after which Partner shall promptly remove or modify the materials.

3. Referrals and Onboarding

3.1 Referral Submission. Partner shall submit prospective merchants through the referral channels ACHQ designates from time to time. Each referral must include the information ACHQ reasonably requests to evaluate the merchant for onboarding.

3.2 Attribution. ACHQ will use commercially reasonable efforts to attribute a properly submitted referral to Partner. Attribution requires that the merchant be referred through ACHQ’s designated channels and that the merchant has not previously been referred by another partner, contacted by ACHQ directly, or already exists in ACHQ’s sales pipeline at the time of referral. ACHQ’s good-faith determination of attribution is final and binding.

3.3 Underwriting and Onboarding. ACHQ performs all underwriting, identity verification, KYC, KYB, and risk evaluation. ACHQ may request additional information from a prospective merchant directly at any time during onboarding. ACHQ may also request that Partner gather additional information from a prospective merchant, but Partner is not authorized to make underwriting decisions. ACHQ may decline any merchant for any reason or no reason. Partner has no recourse for a declined or delayed merchant.

3.4 Merchant Acceptance. Each referred merchant must execute the ACHQ Payment Services Agreement directly with ACHQ before ACHQ provides any service to that merchant. The merchant relationship is governed by the Payment Services Agreement and the ACHQ Privacy Policy, and nothing in this Agreement creates rights or obligations between Partner and any merchant other than those Partner and the merchant separately negotiate.

4. Commissions

4.1 Commission Schedule. The commission rates, tiers, and revenue share structure applicable to Partner are set forth in a separate written Commission Schedule provided by ACHQ and accepted by Partner. The Commission Schedule is incorporated by reference into this Agreement. In the event of a conflict between the Commission Schedule and this Agreement, this Agreement controls except for the specific commission rates and tiers.

4.2 Calculation. Commissions are calculated on net revenue actually received and retained by ACHQ from referred merchants attributed to Partner. Net revenue excludes (a) refunds, returns, reversals, chargebacks, and related losses, (b) interchange, network, sponsor bank, and third-party processor pass-through fees, (c) sales, use, value-added, or other transactional taxes, (d) any fees written off, waived, credited, or refunded by ACHQ, (e) reserves, holds, or amounts subject to ongoing dispute, and (f) any other adjustments ACHQ applies in good faith.

4.3 Payment Schedule. ACHQ aggregates commissions monthly and pays Partner once per month, typically on or before the fifteenth (15th) day of the month following the month in which the underlying fees were collected. Payment is made by ACH to the bank account Partner designates in writing. If Partner’s aggregate commissions for a given month are less than five hundred dollars (US$500.00), ACHQ may carry the balance forward and pay quarterly, or may apply any other minimum-disbursement practice ACHQ communicates in writing.

4.4 Lifetime Residuals on Active Merchants. Subject to this Agreement and the Commission Schedule, Partner is entitled to commissions on each properly attributed merchant for as long as that merchant remains active and processing with ACHQ. A merchant is “active” for purposes of this Section only while the merchant is in good standing with ACHQ, has not been suspended or terminated, and continues to generate net revenue. No commission is owed on a merchant that has been suspended, terminated, has churned, has had its account closed, or otherwise stops generating net revenue.

4.5 No Clawbacks on Legitimate Accounts. ACHQ will not claw back commissions properly earned and paid on legitimate, properly referred merchant accounts. For this purpose, an account is not “legitimate” if (a) the merchant or the referral involved fraud, misrepresentation, forged documents, altered documents, or material omission, (b) Partner or the merchant breached this Agreement, the Payment Services Agreement, or any other ACHQ policy, (c) the account was attributed in error and properly attributable to another partner or to ACHQ direct, (d) ACHQ is required to claw back the related revenue from a sponsor bank, financial institution, regulator, or other third party, or (e) Partner failed to pay a chargeback, return, fine, or other amount owed to ACHQ. ACHQ may withhold, offset, or claw back commissions in any of the foregoing circumstances.

4.6 Set-Off and Reserves. ACHQ may withhold, offset, or recover from Partner’s commissions, future commissions, or any other amounts payable to Partner (a) any amount Partner owes to ACHQ under this Agreement or any other agreement, (b) any chargeback, return, refund, reserve adjustment, fine, penalty, fraud loss, or other liability arising from a merchant Partner referred, (c) any amount necessary to cover Partner’s indemnification obligations, and (d) any amount ACHQ is required to refund or remit to a third party in connection with a merchant Partner referred. ACHQ may establish and adjust a commission reserve at any time, in any reasonable amount, and may hold the reserve for as long as ACHQ reasonably determines is necessary to cover anticipated liabilities.

4.7 Disputes. Partner shall notify ACHQ in writing of any dispute regarding a commission payment within sixty (60) days of the date of the payment. After sixty (60) days, the payment is final and binding and Partner waives any claim related to that payment.

4.8 Commission Changes. ACHQ may modify the Commission Schedule for new merchants Partner refers after the effective date of the modification by providing Partner with thirty (30) days’ prior written notice. Modifications to commissions on Partner’s existing attributed merchant book require thirty (30) days’ prior written notice and apply only to revenue generated after the effective date of the modification. ACHQ may modify commission terms on an existing book without thirty (30) days’ notice if (a) required by a sponsor bank, financial institution partner, network rule, or Applicable Law, (b) the modification is necessary to address a fraud, compliance, or risk issue, or (c) Partner has materially breached this Agreement.

4.9 No Other Compensation. The commissions described in this Section are Partner’s sole compensation from ACHQ. Partner is not entitled to any salary, signing bonus, expense reimbursement, equity, benefits, or other compensation of any kind unless ACHQ expressly agrees in a separate signed writing.

5. Compliance and Conduct

5.1 Applicable Law. Partner shall comply with all federal, state, and local laws, rules, regulations, and guidance applicable to Partner’s business and to Partner’s activities under this Agreement, including without limitation laws governing payment services, consumer protection, privacy, data security, advertising and marketing, telemarketing, unsolicited communications, anti-bribery, anti-money-laundering, and economic sanctions (collectively, “Applicable Law”). Partner shall also comply with the operating rules of Nacha as they apply to Partner’s activities.

5.2 ACHQ Policies. Partner shall comply with this Agreement, the Commission Schedule, the ACHQ Acceptable Use Policy, the ACHQ Brand Guidelines, the ACHQ Privacy Policy, and all other written ACHQ policies as they may be updated from time to time.

5.3 Truthful Representations. Partner shall describe ACHQ and the ACHQ services accurately and shall not make any false, misleading, deceptive, exaggerated, or unsubstantiated representation about ACHQ, ACHQ’s services, ACHQ’s pricing, ACHQ’s settlement times, ACHQ’s approval rates, ACHQ’s underwriting standards, or Partner’s relationship with ACHQ.

5.4 Marketing Practices. Partner shall not engage in robocalls, autodialed calls, prerecorded calls, text-message spam, email spam, unsolicited fax, deceptive web tactics, fake testimonials, or any other marketing practice prohibited by Applicable Law or by ACHQ’s policies. Partner shall maintain its own compliance with the Telephone Consumer Protection Act (TCPA), the CAN-SPAM Act, state telemarketing laws, and any other law applicable to Partner’s outreach.

5.5 Background and Diligence. ACHQ may, at any time and at its sole discretion, request information about Partner’s ownership, controlling persons, financial condition, regulatory status, prior litigation, and operations, and may perform background checks, credit checks, and OFAC and sanctions screening on Partner and its principals. Partner agrees to cooperate with reasonable diligence requests. ACHQ may suspend or terminate this Agreement if Partner fails to cooperate or if the results of diligence are unsatisfactory in ACHQ’s sole discretion.

5.6 Notification of Issues. Partner shall promptly notify ACHQ in writing if Partner becomes aware of (a) any actual or suspected fraud, breach, security incident, or violation of Applicable Law involving any merchant Partner has referred or any ACHQ service, (b) any inquiry, investigation, subpoena, or enforcement action by any regulator, network, sponsor bank, or law enforcement agency that relates to Partner’s activities under this Agreement, (c) any change in Partner’s ownership, control, name, or operating address, or (d) any other matter that would reasonably be expected to affect Partner’s ability to perform under this Agreement.

6. Confidentiality and Data

6.1 Confidential Information. “Confidential Information” means any non-public information disclosed by ACHQ to Partner under this Agreement, regardless of the form of disclosure, that (a) is marked or identified as confidential or proprietary, or (b) should reasonably be understood to be confidential by its nature or the circumstances of disclosure. Confidential Information includes ACHQ pricing, the Commission Schedule, ACHQ underwriting standards, ACHQ product roadmaps, merchant lists, merchant data, and ACHQ technical, business, and operational information.

6.2 Use and Disclosure. Partner shall (a) use Confidential Information solely as necessary to perform Partner’s obligations under this Agreement, (b) protect Confidential Information using at least the same degree of care Partner uses to protect its own most sensitive information, and in no event less than reasonable care, (c) limit access to Confidential Information to Partner’s employees and contractors who have a need to know and who are bound by confidentiality obligations at least as protective as those in this Agreement, (d) not disclose Confidential Information to any other person without ACHQ’s prior written consent, and (e) not use Confidential Information for Partner’s own benefit or the benefit of any third party other than ACHQ.

6.3 Compelled Disclosure. If Partner is required by Applicable Law, subpoena, or court order to disclose Confidential Information, Partner shall, to the extent legally permitted, notify ACHQ promptly in writing and cooperate with ACHQ’s reasonable efforts to limit, narrow, or prevent the disclosure.

6.4 Merchant Data. Information about referred merchants (including prospective merchants who do not ultimately board) is Confidential Information of ACHQ and is also subject to Applicable Law governing personal and financial information. Partner shall not (a) use merchant information for any purpose other than referring the merchant to ACHQ and supporting the referral relationship, (b) sell, lease, transfer, sublicense, or share merchant information with any third party other than ACHQ, (c) retain merchant information after termination of this Agreement except as required to satisfy a legal retention obligation, or (d) use merchant information in a manner that would violate Applicable Law if ACHQ itself had used the information that way.

6.5 Survival. Each party’s confidentiality obligations survive termination or expiration of this Agreement.

7. Representations and Warranties

7.1 Partner Representations. Partner represents and warrants to ACHQ that (a) Partner has the full right, power, and authority to enter into and perform this Agreement, (b) Partner is a U.S.-organized legal entity, in good standing in its jurisdiction of formation, with a U.S. physical address, (c) Partner’s entry into and performance of this Agreement does not and will not conflict with any other agreement to which Partner is a party, (d) Partner and Partner’s principals have not been the subject of any criminal conviction or enforcement action relating to fraud, money laundering, or financial crimes within the past ten (10) years and are not currently the subject of any pending investigation or enforcement action of that nature, (e) Partner and Partner’s principals are not on the U.S. Treasury Department’s OFAC Specially Designated Nationals list or any other applicable sanctions list, and (f) Partner will perform under this Agreement in compliance with Applicable Law and the terms of this Agreement.

7.2 No Warranty by ACHQ. ACHQ provides the Partner Program and the ACHQ services to Partner on an “as is” and “as available” basis. To the maximum extent permitted by Applicable Law, ACHQ disclaims all representations and warranties of any kind, express, implied, statutory, or otherwise, including without limitation any implied warranty of merchantability, fitness for a particular purpose, non-infringement, accuracy, completeness, uninterrupted availability, error-free operation, or any specific approval rate, settlement time, processing limit, or business outcome.

8. Indemnification

8.1 Partner Indemnification. Partner shall defend, indemnify, and hold harmless ACHQ, its affiliates, and their respective directors, officers, employees, agents, and representatives (collectively, the “ACHQ Parties”) from and against any and all claims, demands, suits, investigations, proceedings, losses, damages, liabilities, fines, penalties, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and expert witness fees) arising out of or relating to (a) Partner’s breach of this Agreement, (b) Partner’s violation of Applicable Law, (c) Partner’s acts, omissions, statements, marketing materials, or representations about ACHQ or the ACHQ services, (d) any merchant referral that involved fraud, misrepresentation, forged or altered documents, or material omission by Partner or the merchant, (e) any claim by a merchant, prospective merchant, or third party arising out of Partner’s relationship with that person or Partner’s communications, agreements, or conduct relating to that person, (f) any chargeback, return, fine, penalty, or other liability arising from a merchant Partner referred to the extent attributable to Partner’s conduct or omissions, and (g) any infringement, misappropriation, or violation of any third party’s intellectual property or other right caused by content, marks, or materials Partner provided to ACHQ or used in the marketing of the ACHQ services.

8.2 ACHQ Indemnification. Subject to the limitations of liability in this Agreement, ACHQ shall defend, indemnify, and hold harmless Partner from and against any third-party claim that the unmodified ACHQ name, logo, or marketing materials supplied by ACHQ to Partner, when used by Partner strictly in accordance with this Agreement and ACHQ’s brand guidelines, infringes a U.S. registered trademark or copyright of the claimant. This is ACHQ’s sole indemnification obligation under this Agreement.

8.3 Procedure. The party seeking indemnification shall (a) promptly notify the indemnifying party in writing of the claim, (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim in a manner that imposes a non-monetary obligation on the indemnified party without that party’s prior written consent), and (c) reasonably cooperate with the indemnifying party in the defense and settlement of the claim, at the indemnifying party’s expense.

9. Limitation of Liability

9.1 Exclusion of Damages. To the maximum extent permitted by Applicable Law, in no event shall ACHQ or any other ACHQ Party be liable to Partner or to any third party under this Agreement for any indirect, incidental, special, consequential, exemplary, or punitive damages, or for any loss of profits, revenue, goodwill, business opportunity, data, or anticipated savings, in each case regardless of the theory of liability and regardless of whether ACHQ has been advised of the possibility of such damages.

9.2 Cap. To the maximum extent permitted by Applicable Law, the total aggregate liability of ACHQ and the ACHQ Parties under or in connection with this Agreement shall not exceed the lesser of (a) the total commissions ACHQ has paid Partner under this Agreement during the twelve (12) months immediately preceding the event giving rise to the claim and (b) twenty-five thousand U.S. dollars (US$25,000.00).

9.3 Excluded Obligations. The limitations in this Section 9 do not apply to (a) Partner’s indemnification obligations, (b) Partner’s breach of Section 6 (Confidentiality and Data), or (c) Partner’s breach of Section 2 (Partner Activities), in each case which are not subject to any cap or exclusion.

10. Insurance

Partner shall maintain, at Partner’s expense and throughout the term of this Agreement, the following insurance with reputable insurers (a) commercial general liability insurance with limits of at least one million U.S. dollars (US$1,000,000) per occurrence and two million U.S. dollars (US$2,000,000) in the aggregate, (b) errors and omissions or professional liability insurance with limits of at least one million U.S. dollars (US$1,000,000) per occurrence and (c) workers’ compensation insurance to the extent required by Applicable Law in each state where Partner has employees. Partner shall provide ACHQ with a certificate of insurance evidencing the foregoing coverage upon ACHQ’s request.

11. Term and Termination

11.1 Term. The initial term of this Agreement is one (1) year from the date of acceptance. Thereafter, this Agreement automatically renews for additional one (1) year terms unless either party provides written notice of non-renewal at least sixty (60) days before the end of the then-current term.

11.2 Termination Without Cause. Either party may terminate this Agreement without cause by providing the other party with sixty (60) days’ prior written notice.

11.3 Termination for Cause by ACHQ. ACHQ may terminate this Agreement immediately upon written notice to Partner if (a) Partner breaches any provision of this Agreement and does not cure the breach within ten (10) days after written notice from ACHQ (or, for breaches that ACHQ reasonably determines cannot be cured or that pose immediate risk to ACHQ, its merchants, its financial institution partners, or any third party, without any cure period), (b) Partner becomes insolvent, files or has filed against it any petition under any bankruptcy or insolvency law, makes an assignment for the benefit of creditors, or ceases to do business in the ordinary course, (c) Partner or any of its principals is convicted of, pleads guilty or no contest to, or becomes the subject of a regulatory enforcement action involving fraud, money laundering, or any financial crime, (d) any of Partner’s representations or warranties in this Agreement is or becomes untrue in any material respect, (e) Partner’s continued participation in the Partner Program poses an unacceptable financial, regulatory, reputational, or security risk to ACHQ in ACHQ’s sole determination, or (f) any sponsor bank, financial institution, regulator, network, or law enforcement agency requires ACHQ to terminate its relationship with Partner.

11.4 Effect of Termination. Upon termination or expiration of this Agreement (a) Partner shall immediately cease all use of the ACHQ name, logos, marks, and marketing materials, (b) Partner shall immediately cease all referral and marketing activity for the ACHQ services, (c) Partner shall promptly return or destroy (at ACHQ’s election) all Confidential Information in Partner’s possession, except as required to satisfy a legal retention obligation, (d) all licenses granted to Partner under this Agreement immediately terminate, and (e) any then-outstanding Partner indemnification, confidentiality, payment, and post-termination obligations survive.

11.5 Post-Termination Commissions. If this Agreement terminates or expires for any reason other than termination for cause by ACHQ under Section 11.3, Partner remains entitled to lifetime residuals on properly attributed merchants who remain active and processing in good standing with ACHQ, subject to Section 4 (Commissions), the Commission Schedule, and continued compliance with Section 6 (Confidentiality and Data) and the post-termination obligations in this Agreement. If ACHQ terminates this Agreement for cause under Section 11.3 (a), (c), (d), (e), or (f), all post-termination commission obligations of ACHQ immediately cease and Partner forfeits any right to commissions on merchants referred by Partner, in addition to any other remedies ACHQ may have. ACHQ may also offset any amounts owed by Partner to ACHQ against any commissions otherwise payable.

12. General

12.1 Notices. Notices to ACHQ shall be sent by email to legal@achq.com, with a copy to compliance@achq.com, or by U.S. mail (return receipt requested) to ACHQ, Inc., 1990 Main St, Suite 750, Sarasota, FL 34236. Notices to Partner shall be sent by email to the contact email Partner has on file with ACHQ, or by U.S. mail to the address Partner has on file with ACHQ. Notices are deemed given when sent by email or three business days after deposit in the U.S. mail.

12.2 Governing Law and Venue. This Agreement is governed by the laws of the State of Florida, without regard to its conflict of laws principles. The exclusive venue for any action arising out of or relating to this Agreement is the federal or state courts located in Sarasota County, Florida. Each party submits to the exclusive personal jurisdiction of such courts and waives any objection to venue or forum.

12.3 Waiver of Jury Trial. Each party irrevocably waives, to the maximum extent permitted by Applicable Law, any right to a trial by jury in any proceeding arising out of or relating to this Agreement.

12.4 Equitable Relief. Partner acknowledges that a breach of Section 2 (Partner Activities) or Section 6 (Confidentiality and Data) may cause ACHQ irreparable harm for which monetary damages would be inadequate. ACHQ may seek injunctive or other equitable relief for any actual or threatened breach of those sections without posting a bond or other security.

12.5 No Exclusivity. This Agreement is non-exclusive. ACHQ may enter into similar agreements with other partners and may sell its services directly to merchants, including merchants in Partner’s territory or vertical. Partner may also offer similar services from other providers, except that during the term of this Agreement Partner shall not actively divert merchants Partner has referred to ACHQ to a competing service.

12.6 Assignment. Partner may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without ACHQ’s prior written consent. Any purported assignment without consent is void. ACHQ may assign this Agreement at any time, including to an affiliate or in connection with a merger, acquisition, reorganization, or sale of assets. Subject to the foregoing, this Agreement binds and inures to the benefit of the parties and their permitted successors and assigns.

12.7 No Third-Party Beneficiaries. This Agreement is for the exclusive benefit of the parties. It does not create any rights in or obligations to any third party, including any merchant Partner refers.

12.8 Force Majeure. Neither party is liable for any failure to perform (other than payment obligations) caused by circumstances beyond its reasonable control, including weather, natural disaster, war, terrorism, civil unrest, strike, embargo, pandemic, failure of public or private infrastructure, or government action.

12.9 No Waiver. No failure or delay by ACHQ to enforce any right or provision of this Agreement is a waiver of that right or provision. No waiver is effective unless in a writing signed by ACHQ.

12.10 Severability. If any provision of this Agreement is held invalid or unenforceable, that provision shall be limited or modified to the minimum extent necessary to make it enforceable, and the remaining provisions remain in full force and effect.

12.11 Construction. Section headings are for convenience only and do not affect interpretation. “Including” and “include” mean “including without limitation.” No provision of this Agreement shall be construed against a party because that party drafted it. References to dollar amounts mean U.S. dollars.

12.12 Entire Agreement. This Agreement, together with the Commission Schedule, the ACHQ Acceptable Use Policy, the ACHQ Brand Guidelines, the ACHQ Privacy Policy, and any other documents incorporated by reference, constitute the entire agreement between the parties regarding the Partner Program and supersede any prior or contemporaneous agreement, understanding, or representation, oral or written, on the subject. In the event of any conflict between this Agreement and the Commission Schedule, this Agreement controls except for the specific commission rates and tiers, which are governed by the Commission Schedule. In the event of any conflict between this Agreement and the ACHQ Payment Services Agreement, the ACHQ Payment Services Agreement controls as between ACHQ and any merchant.

This ACHQ Embed Platform Agreement (“Agreement”) is a legally binding agreement between you and ACHQ, Inc. (“ACHQ”) and applies to your use of the ACHQ Platform Services, as defined in this Agreement.

It is important that you read and understand this Agreement as it governs your use of the ACHQ Platform Services. You represent and warrant that you have the authority to accept this Agreement on behalf of the legal entity you have registered at www.ACHQ.com (“you”, “your” throughout this Agreement) and to provide any information that you share with ACHQ. By indicating your acceptance of this Agreement or by completing and submitting an ACHQ-hosted web form (“Form”) or other agreement that references this Agreement, you agree to be bound by this Agreement. If you do not accept this Agreement, you must not access or use the ACHQ Embed Platform Services.

We may amend this Agreement at any time by providing notice to you. Notice may be provided to you on www.ACHQ.com, on any other website maintained by ACHQ, by email, or by any other reasonable means. The amended Agreement is effective when posted or as of the date indicated, and your continued use of the ACHQ Platform Services constitutes your acceptance of any amended Agreement.

Using the ACHQ Embed Platform Services

1. ACHQ Platform Services. ACHQ offers electronic payment services through an online dashboard experience available at www.ACHQ.com and the ACHQ application programming interfaces (“ACHQ API”), and related technical, business and support services, each as may be modified or updated (together, the “ACHQ Platform Services”). The ACHQ Platform Services allow you to manage your end users’ payments experience on your platform, website, and/or application (each, a"Platform”) and open and manage end user ACHQ accounts (“Embedded Merchant Accounts”) (together, your “ACHQ Services”). An end user that has opened a Merchant Account is referred to as a “Merchant”. The products and services that you provide through your Platform, including the ACHQ Services, are referred to herein as “Your Services”. It is your sole responsibility to clearly explain to your end users the nature of Your Services, your ACHQ-Enabled Services, and ACHQ’s role in the provision of such services.

2. ACHQ Platform Account. In order to use the ACHQ Platform Services, you must: (a) be a U.S. company or other legally-organized entity, in good standing, with a U.S. physical address, and (b) open and maintain a ACHQ platform account governed by this Agreement and the ACHQ Privacy Policy, as they may be updated from time to time. Your use of the ACHQ Platform Services may be limited if your ACHQ platform account is suspended or otherwise restricted. You represent and warrant that you are eligible to use the ACHQ Platform Services and that you will not open or use your ACHQ account for any personal, family, or household purposes.

3. Agreements with Embedded Merchants: Your User Agreement must explain the Platform Services, how you access and use Embedded Merchant Data, and the Activity that you may perform. Your User Agreement must also give you clear authorization to perform the Platform Services, and to communicate the Embedded Merchant Data to ACHQ. ACHQ is not responsible to your Embedded Merchants for any Platform Services you provide --- you are solely responsible for providing Platform Services to Embedded Merchants as described in Your User Agreement. You may only engage in Activity for an Embedded Merchant to the extent that you are doing so on behalf of the Embedded Merchant, in accordance with the authority granted to you under Your User Agreement.

4. Routine Business Operations Reviews. ACHQ may request, and you agree to provide, information about your business, operations, funds flows, and/or integration with the ACHQ Platform Services. ACHQ reserves the right to reassess your eligibility for the ACHQ Platform Services at any time. ACHQ may immediately suspend provision of any of the ACHQ Platform Services in the event that ACHQ reasonably determines, based on any of the review processes described in this Agreement, that you have become ineligible for any of the ACHQ Platform Services.

5. Prohibitions. You are prohibited from: (a) using the ACHQ Platform Services for any fraudulent, unlawful, deceptive, or abusive purposes; (b) using the ACHQ Platform Services in any manner intended to harm an end user, ACHQ, or any third party; (c) circumventing ACHQ’s intended limitations for any feature of the ACHQ Platform Services as communicated to you by ACHQ; (d) using the ACHQ Platform Services in a manner inconsistent with any developer documentation, integration guidance, or other technical, policy, or other requirements communicated to you by ACHQ or posted on ACHQ’s website, each as may be updated from time to time (“Integration Requirements”); (e) using the ACHQ Platform Services in violation of any guidance regarding restricted activities communicated to you by ACHQ; (e) using the ACHQ Platform Services to conduct transactions for personal, family, or household purposes; (f) facilitating transactions for a third party that is not your legitimate end user; (g) replicating and/or reselling the ACHQ Platform Services by offering and/or enabling any third party to access the ACHQ Platform Services through your integration; or (h) attempting any of the foregoing.

6. Compliance. You represent and warrant that you will only use the ACHQ Platform Services for lawful and legitimate purposes and that you will at all times comply and conduct your business in compliance with: (a) all applicable federal, state, and local laws, rules, regulations, and guidance, including, without limitation, those governing payment services, consumer protections, privacy, and data security (collectively, “Applicable Law”); (b) this Agreement; (c) the ACHQ Terms; and (d) the Integration Requirements.

7. Merchant Payment Service Agreement. ACHQ has a direct contractual relationship with each Embedded Merchant Account and provides ACH Origination Services directly to each Merchant. Merchants may choose to use the Services outside of their relationship with you.

8. Transaction Activity and your Liability. You are solely responsible for your end users’ payment activity initiated using the ACHQ Platform Services, including, without limitation, any fraudulent activity. ACHQ has no obligation to ensure that the funds required to complete a payment will be available. Any payment sent or received by you or your end users may: (a) be reversed in accordance with ACHQ or its Financial Institution Partners’ risk management policies, (b) be reversed in accordance with Applicable Law, including without limitation, by ACH return as defined under the Nacha Rules, (c) fail due to your error or end user error, (d) fail due to the provision of inaccurate information by you or your end user; or (e) be cancelled or rejected by an end user or the end user’s financial institution (each, a "Failed Payment").

   You are not liable to ACHQ and its Financial Institution Partners for any losses caused by approved or proper payment activity originated by your Platform on behalf of a Merchant via the ACHQ API; including losses caused by Failed Payments or Chargebacks.

   You are liable to ACHQ and its Financial Institution Partners for any and all losses caused by unauthorized or erroneous activity API requests initiated by you or your Platform, whether through misconduct, negligence, error, or otherwise. You authorize ACHQ and its Financial Institution Partners to recover any such amounts due to ACHQ and/or its Financial Institution Partners by debiting the available balance in your ACHQ account or any other of your accounts that ACHQ may identify.

Onboarding Merchant Accounts

ACHQ Embed provides several mechanisms for you to onboard Embed Merchant Accounts, as described in the ACHQ Embed Documentation. You are solely responsible for the selection of your onboarding mechanism for Embedded Accounts. Regardless of the onboarding and integration mechanism that you select, you must always take all reasonable steps to ensure that your Embedded Accounts do not use Services in violation of the ACHQ Terms or for any activity that is expressly prohibited, including those business types listed on the Acceptable Use Policy.

Please read the following sections carefully prior to selecting the option that is appropriate for your business when onboarding Embedded Accounts. The method chosen may impact your requirements for data collection and security, as well as customer service and support obligations.

Basic Onboarding

With basic account onboarding, you can use a set of prebuilt user interface components to create your own onboarding experience for Embedded Merchant Accounts directly from your Platform without collecting or storing with any sensitive Account data. Merchant Accounts created using basic onboarding provide information directly to ACHQ and will consent to the ACHQ Terms via the web component.

You will be able to to prepopulate all fields in the embedded component prior to granting the Merchant access to interface. You are responsible for ensuring the accuracy of any Account Data you prepopulate or provide as part of this process. Providing inaccurate or erroneous data may delay or prevent Account activation.

Upon submission of the Account data, the Merchant will be contact by ACHQ via email and prompted to connect their Transfer Account to ACHQ via Plaid. ACHQ will perform full Underwriting on the Account and any subsequent Onboarding requests for data or clarity will be sent directly to the Merchant by ACHQ. Your platform may choose to receive updates during the Onboarding process via Webhooks, Email, or Slack.

Upon activation, Basic Merchant Accounts will have full access to the ACHQ dashboard and will be assigned an ACHQ account manager.

Advanced Onboarding

Using Advanced onboarding, you can leverage the ACHQ Embed API to create Merchant Accounts for your users. You are responsible for collecting and ensuring Merchant Account data is passed to ACHQ in a secure fashion. You are responsible for the accuracy and completeness of any information about Merchant Accounts provided to ACHQ as part of the onboarding process. Additionally, it is your responsibility to provide any additional requests for data or clarity that may be required by the ACHQ Onboarding team on a given Account.

ACHQ will not contact "Advanced" Merchants directly during the Onboarding process and may decline to create or activate a Merchant Account until ACHQ is satisfied that it has received sufficient information about the Account.

ACHQ may allow you to take ownership of the core Underwriting functions required to activate a Merchant account. The ACHQ Embed documentation describes the minimum information that must be provided to ACHQ in order to create a Merchant Account through advanced onboarding. Depending on the industry type, transaction type, customer types, or any other risk factors, ACHQ may require that you provide additional information as part of the custom onboarding process, and may require you to alter the acceptance process for the ACHQ Services if we believe that the process is not consistent with applicable law, industry standard practices, or ACHQ's standards.

If your Platform allows an end user to become a Merchant via Advanced Onboarding, your Terms must clearly disclose the following: (a) to access ACHQ Services a Merchant must open a Merchant Account provided by ACHQ by accepting the ACHQ Payment Service Agreement (“ACHQ Terms”) and ACHQ Privacy Policy; (b) any funds held in a Merchant Account are held by ACHQ’s Financial Institution Partners as set out in the ACHQ Terms. You must capture an end user’s acceptance of Your Terms, the ACHQ Terms, and the ACHQ Privacy Policy in an auditable manner and in compliance with federal electronic signatures law prior to providing any ACHQ Services to that end user. You will be regularly asked to provide the executed Agreements to ACHQ.

Merchant Acceptance

ACHQ may require that you establish certain criteria for accepting Merchant Accounts consistent with ACHQ's programs for underwriting and screening Merchant Accounts ("ACHQ Underwriting Guidelines and Policies"). ACHQ has ultimate discretion regarding its underwriting, risk and compliance decisions, including any decision of whether to provide Services to any Merchant Account. ACHQ reserves the right to suspend or terminate provision of Services to any Merchant Account at any time if ACHQ determines that the Merchant Account's activities (a) violate ACHQ's Underwriting Policies or the ACHQ Payment Services Agreement; (b) are listed on the Restricted Businesses List; or (c) otherwise reflect negatively on the brand or reputation of ACHQ, a Financial Institution Partner, or a Regulatory Agency.

To the extent that you become aware of a Merchant being engaged in any fraudulent, unlawful, deceptive or abusive activity, you must promptly notify ACHQ. Once notified by you, ACHQ will use commercially reasonable efforts to determine whether to terminate or suspend any such account's access to the Services.

Embed Platform Revenue Sharing

During the term of this agreement ACHQ Embed Platform Fees are aggregated by Merchant over the course of a calendar month, unless otherwise communicated to you in advance in writing. Fees incurred in a calendar month will be charged to Merchant’s on or after the 2nd business day of the following month. The Fee calculation will be derived from the fee schedule as set forth in previously agreed upon “ACHQ Platform Payments” Proposal, and any other schedules that may exist, which are all made part of this Agreement.  On or about the fifteenth (15th) day of each month, ACHQ will credit via ACH into your account an amount equal to the revenue sharing payment (the “Revenue Share”). The Revenue Share will be computed monthly as of the last day of each calendar month. This calculation will be based upon the revenue sharing agreed set forth in the previously agreed upon “ACHQ Platform Payments” Proposal. ACHQ will provide a transactional report each month, corresponding to each Revenue Share for auditing purposes. You shall report any claim relating to the Revenue Share within sixty (60) days of the date of payment, after which the amount of payment shall be final and binding.     You will receive the Revenue Share each month only if the applicable fees have been paid in full by Merchants and the Revenue Sharing total is greater than $500. For instances where the monthly Revenue Share total is less than $500, the Revenue Sharing payments will be disbursed quarterly. 

Set-Off and Reserve. ACHQ may withhold, offset, or recoup from any Revenue Share, any other amount payable to you, and any funds of yours in ACHQ’s possession, any amount you owe ACHQ under this Agreement, including your liability under Transaction Activity and your Liability and your indemnity obligations, whether liquidated, unliquidated, or contingent. If ACHQ reasonably determines that your Embedded Merchant Accounts present elevated return, dispute, fraud, or regulatory risk, or if this Agreement terminates, ACHQ may hold Revenue Share and any such funds in reserve for a minimum of two (2) years following the later of the last Transaction on any Embedded Merchant Account or termination. Any release after that minimum hold is at ACHQ’s sole discretion, exercised in good faith, once ACHQ determines that no return, dispute, claim, fine, assessment, or regulatory inquiry relating to your Embedded Merchant Accounts is pending or reasonably anticipated. Reserve funds earn no interest, are not held in trust for you, and may be applied to any amount you owe. Each Embedded Merchant’s own reserve is governed by Section 4.11 of the ACHQ Payment Services Agreement. This paragraph survives termination of this Agreement.

Privacy and Data Security

1. Your Privacy Policy. You must publish and comply with a privacy policy that is prominently displayed and readily accessible from every Application from which Your Services can be accessed, i.e. if an end user can access Your Services from both a website and a mobile application, you must make your privacy policy available on both the website and in the mobile application. Your privacy policy must comply with Applicable Law and clearly explain what data you collect, how you will use it, how you will share it, and how you will store it.

2. Use of Data. You must obtain your end users’ express consent to use their data for the purposes of providing Your Services, including the ACHQ Services, to them. You understand and agree that you may only use data that you receive via the ACHQ Platform Services in accordance with this Agreement and Applicable Law. You are prohibited from selling, transferring, sublicensing, and/or assigning any interest in any data that you access or receive via the ACHQ APIs and the ACHQ Platform Services. You acknowledge that you are solely responsible for your use of any end user data.

3. Data Security. Each party is responsible for the security of all data in its possession or control and for its compliance with Applicable Law in connection with its data handling and management practices. Each party is responsible for maintaining commercially reasonable data security controls to protect and secure data from unauthorized use, access, or disclosure. You agree to provide ACHQ with any evidence to demonstrate your compliance with this section upon request by ACHQ. You agree that ACHQ may terminate your use of the ACHQ Platform Services in its sole discretion if ACHQ determines that you or your application pose an unacceptable security risk to ACHQ, its platform, or its users.

Confidentiality

1. Confidential Information Definition. “Confidential Information” means any type of information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement, regardless of the form of disclosure and which (a) is clearly marked as “confidential” or “proprietary” at the time of such disclosure, or (b) should, by its nature and the circumstances of disclosure, reasonably be understood to be confidential by Receiving Party. Notwithstanding the foregoing, Confidential Information does not include information that is in Receiving Party’s possession at the time of disclosure, as substantiated in writing, or enters the public domain without breach of this Agreement.

2. Confidentiality Obligation. Receiving Party must maintain the confidentiality of Disclosing Party’s Confidential Information in a commercially reasonable manner and in a manner no less stringent than the measures it employs to protects its most confidential and proprietary information. Receiving Party must not use Disclosing Party’s Confidential Information for any purpose other than as necessary to perform Receiving Party’s obligations under this Agreement. Receiving Party may disclose Confidential Information that is required to be disclosed pursuant to any statute, regulation, order, subpoena or document discovery request, or in response to an inquiry or request of any governmental or regulatory agency or self-regulatory organization, provided that, to the extent not prohibited, Receiving Party will notify Disclosing Party of such request as soon as practicable in order to afford Disclosing Party an opportunity to seek a protective order. Receiving Party’s obligation to maintain the confidentiality of Confidential Information will survive the termination or expiration of this Agreement for any reason.

Term and Termination

1. Term The initial term of this Agreement shall be for a period of one (1) year, commencing on the date set forth herein, and shall thereafter automatically renew for additional terms of (1) year on the anniversary date of this Agreement, unless notice is provided in writing by either party of its intent not to renew, 60 days or more prior to the renewal date.

1. Termination. Either ACHQ or you may terminate this Agreement at any time by providing the other party with 60 days written notice. Upon completion of the termination notice period, you will: (a) immediately be restricted from using the ACHQ Platform Services to accept new transactions or activate new Merchant Accounts, (b) cooperate with ACHQ to complete all pending transactions, (c) promptly disburse any funds held in Merchant Accounts in accordance with your agreement with end users.

   ACHQ may also terminate this Agreement immediately if: (d) you fail to pay any Fees or any other amounts owed under this Agreement within thirty (30) days of receiving notice from ACHQ that payment is owed; (e) you violate this Agreement or any other applicable ACHQ policy or agreement; or (f) your use of the ACHQ Platform Services poses unacceptable risk, including but not limited to financial or data security risk, to ACHQ and/or its Financial Institution Partner in ACHQ’s and/or its Financial Institution Partner’s sole discretion; or (g) If Nacha, FTC, CFPB, or any federal, state or other type of regulatory agency having jurisdiction over this Agreement makes a demand that ACHQ terminate its relationship your platform or industry type.

   Without limiting the foregoing, you expressly acknowledge and agree that you will have a continuing obligation after termination of this Agreement to pay any Fees, fines, or other amounts related to your transactions as set out in this Agreement, and to appropriately disburse any Customer Account funds.

Representations and Warranties

1. You represent and warrant to ACHQ that you,

   (a) have the full power and authority to execute, deliver and perform this Agreement and acknowledge this Agreement is valid, binding and enforceable in accordance with its terms;

   (b) no provision in this Agreement requiring your performance is in conflict with your obligations under any charter or any other agreement of any form to which you are bound as a party;

   (c) are organized, authorized and in good standing under the laws of the state of your organization;

   (d) obtain authorization from the Merchant for all Activity initiated on its behalf, and for the use of any Merchant Account Data obtained through or used with ACHQ Embed, by you, your employees, and your agents;

   (e) dutifully comply with the onboarding obligations described in this Embed Platform Agreement;

   (f) not use ACHQ Embed or knowingly permit the use of Services by Embedded Accounts in a manner that is fraudulent, unlawful, deceptive or abusive.

   To the maximum extent permitted by law, except as expressly provided in this Embed Platform Agreement, ACHQ provides ACHQ Embed to you on an "as is" / "as available" basis, without any warranties, express, implied, or statutory.

Other Legal Terms

1. Indemnification. Each party hereto (the “Indemnitor”, as the case may be) agrees to indemnify, defend, and hold the other party, its employees, directors, managers, officers and agents (collectively, the “Indemnitees”) harmless from and against any reasonable loss, liability, damage, penalty or expense (including reasonable attorneys' fees and other legal fees) the Indemnitees may incur as a result of Indemnitor’s or Indemnitor’s employees’, sales reps’, sub contractors’ or affiliates’, failure to comply with the terms of this Agreement including any misrepresentation of ACHQ Services, breach of representations or warranties made, the manner or method in which services are performed, negligence or acts or omissions that cause damages to the Indemnitees or their Vendors or partners, and violations of the Rules.

   Where an Embedded Merchant was created by your platform via an ACHQ onboarding process, you also agree to defend, indemnify, and hold harmless all Disclaiming Entities from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to (a) Activity on the Embedded Merchant, whether initiated by you or not (including all Transactions, Disputes, Refunds, Reversals, Claims, fines associated with such Activity, or use of the Services in a manner prohibited under this Embed Platform Agreement or the ACHQ Payment Services Agreement); (b) any inaccurate or incomplete information provided to ACHQ as part of the onboarding of the Embedded Merchant; and (d) for custom onboarding, your failure to acquire binding acceptance of the ACHQ Embedded Merchant Agreement from any Embedded Merchant.

   ACHQ agrees to defend, indemnify, and hold you harmless from and against any claim, suit, demand, action, or proceeding instituted by a non-affiliated third party to this Embed Platform Agreement to the extent that such arises out of ACHQ Embed infringing the third party's intellectual property rights.

2. Limited Warranty. THE ACHQ PLATFORM SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATION OF WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ACHQ MAKES NO REPRESENTATION OR WARRANTY THAT THE ACHQ PLATFORM SERVICES WILL MEET YOUR REQUIREMENTS OR BE CONTINUOUS, UNINTERRUPTED, OR ERROR-FREE.

3. Limitation of Liability. IN NO EVENT WILL ACHQ BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY, DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES INCURRED IN CONNECTION WITH: (a) THIS AGREEMENT, OR (b) YOUR USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE ACHQ PLATFORM SERVICES UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER ACHQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ACHQ’S LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES ACHQ HAS RECEIVED FROM YOU UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO A CLAIM. THIS LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

4. Assignment. You may not transfer, assign, or delegate this Agreement or any of your rights, obligations, or duties under this Agreement without the prior written consent of ACHQ. ACHQ may transfer or assign this Agreement or any of its rights, obligations, or duties under this Agreement at any time.

5. Independent Contractor Relationship. You and ACHQ are independent entities, and this Agreement does not create any partnership, agency, or joint venture relationship between you and ACHQ. You may not and may not attempt to represent, warrant, or obligate ACHQ to any commitment with any third party.

6. Force Majeure. ACHQ is not responsible for any failure to perform its obligations under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, including, but not limited to, weather, fire, flood, earthquake, war, embargo, strike, riot, civil unrest, acts of terrorism, failure or interruption of public or private infrastructure, or the intervention of any government entity. In the event of such a failure, ACHQ’s obligations will be suspended until ACHQ is able to perform.

7. Notices. All notices to ACHQ must be sent by email to legal@ACHQ.com.

8. Governing Law; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida in federal or state court in Sarasota County, Florida. Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party and each party hereby submits to the exclusive personal jurisdiction and venue of such courts.

9. No Third Party Beneficiaries. This Agreement is intended for the exclusive benefit of you and ACHQ and not intended to benefit any third party.

10. Attorneys’ Fees. Should suit or arbitration be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, including expert witness fees and fees on any appeal.

11. Entire Agreement, Conflicts, No Waiver, Construction. This Agreement, along with the ACHQ Terms, the Integration Requirements, any executed Order Form, and any documents incorporated by reference, constitute the entire agreement between the parties. Any agreement to modify or amend this Agreement must be agreed to in writing by the parties. With the exception of any Order Form that the parties have executed, to the extent that the terms of this Agreement conflict with any other ACHQ agreement or policy governing your use of the ACHQ Platform Services, this Agreement will control. Any failure by ACHQ to enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by law, and the remaining provisions will remain in full force and effect. All provisions of this Agreement that by their nature are intended to survive termination or expiration of this Agreement will survive termination of this Agreement for any reasons. No provision of this Agreement will be construed against a party by reason of that party drafting such provision.

1.0 ACH Agreement Terms and Conditions

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These ACH Agreement Terms and Conditions (the “Agreement”) govern the agreement between the company ("Merchant") named on any ACH processing Application ("Application") to which these Terms and Conditions are attached and ACHQ, Inc., a Florida company with its principal place of business at 1990 Main St Suite 750, Sarasota, FL 34236 ("ACHQ"). Merchant agrees to be bound by the terms of this Agreement as stated herein. Each of the individuals signing this Agreement and the Application represents and warrants that he or she has the full power and authority to bind the party (Merchant) identified above his or her name.

1.1 ACH PROCESSING

ACHQ and Merchant have contracted for ACHQ to provide Automated Clearing House ("ACH") services as a Third Party Processor of ACH transactions. These transactions will be placed through a financial institution used by ACHQ who will be acting as the Originating Depository Financial Institution ("ODFI"). Merchant shall act as the Originator. ACHQ will debit funds ("Debit Entry") for the purpose of collecting Automatic Payments from the accounts of the Merchant's customers ("Receivers") and/or credit funds ("Credit Entry") for the purpose of paying the Merchant's accounts receivable in accordance with the terms of this Agreement, the Operating Rules ("Rules") of the National Automated Clearing House Association ("NACHA"), and applicable federal, state and local laws or regulations governing ACH transactions (collectively, "Regulations"). The terms and conditions of this Agreement do not limit Merchant's obligation to comply with the Rules and Regulations. "Entry" or "Entries" shall mean either an ACH Credit Entry or an ACH Debit Entry.

1.2 ACCOUNT AND AUTHORIZATION

Merchant shall, at all times, maintain an account at a bank that is a member of the Federal Reserve ACH System ("Account"). Merchant expressly authorizes ACHQ to debit and/or credit the Account designated by Merchant according to the terms of this Agreement. Merchant further authorizes ACHQ to process electronic funds transfers as a Third Party Processor through the Account designated by Merchant. Merchant represents and warrants that it shall, at all times, maintain a sufficient balance in the Account to cover all obligations owed to ACHQ, including, but not limited to, all Entries originated by Merchant, returned Entries, chargebacks, fees, fines, and all other obligations owed to ACHQ and Merchant authorizes ACHQ to debit its Account for all amounts owed to ACHQ. Merchant shall bear all risk of loss, without warranty or recourse to ACHQ for the amount of any transaction, or other amounts due ACHQ (including ACHQ's actual costs and expenses) due to ACH returns of any kind, whether for customer chargebacks or unauthorized returns, insufficient funds, administrative or corporate returns, or any other type of returns. Merchant acknowledges and expressly agrees that this authorization applies with the same force and effect to any new bank account information for Merchant that ACHQ obtains at a future date, regardless of the timing, reason or manner in which ACHQ obtains information about other bank account(s) for Merchant (including, but not limited to, bank account(s) that Merchant identifies to ACHQ or bank account(s) for Merchant that ACHQ identifies through its own lawful research or investigation), and Merchant expressly agrees that ACHQ may debit any such account held by, or on behalf of Merchant, in order to satisfy any of Merchant's obligations to ACHQ. Merchant shall provide new Account information to ACHQ, in writing, at least 10 days prior to closing or changing the Account designated in this Agreement. This authorization shall survive the termination of this Agreement and shall continue in perpetuity until all of Merchant's obligations to ACHQ are paid in full, including, but not limited to, those obligations described in this Agreement.

1.3 CANCELLATION

Either party may cancel this Agreement with 60 days’ written notice to the other party, subject to the terms and limitations set forth in Section 4.9 (Term and Termination). ACHQ may also immediately cancel this Agreement and immediately suspend all processing for Merchant without providing advance written notice to Merchant on any of the grounds set forth in Section 4.9.

1.4 CONSUMER CREDIT INQUIRIES

A credit report may be made in connection with this Application and Agreement. Merchant and the individuals signing this Agreement on behalf of the Merchant, including any Guarantors, authorize ACHQ, or any credit bureau or any credit reporting agency employed by ACHQ or any agents of ACHQ to investigate the references provided or any other statements or data obtained from the Merchant, or any of the above principals, for the purpose of this Application and Agreement. Merchant also authorizes ACHQ to obtain additional credit reports regarding Merchant on an annual basis, unless ACHQ, in its sole and absolute discretion, determines that it is necessary for ACHQ to periodically obtain Merchant's credit report on a more than annual basis, in which case Merchant authorizes ACHQ to obtain such additional credit reports. Notwithstanding anything in this paragraph, Merchant authorizes ACHQ to obtain a credit report regarding Merchant if Merchant requests increased processing amounts or parameters, or if Merchant originates sporadic transactional volume.

2.0 MERCHANT RESPONSIBILITIES

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2.1 AUTHORIZATION

Merchant agrees to obtain authorization from Receivers pursuant to the requirements of the Rules and applicable Regulations prior to debiting and/or crediting Receivers' accounts. Merchant will maintain copies of the authorizations for a period of 2 years from the termination or revocation of the authorization.

2.2 AUTHENTICATION

Merchant agrees that ACHQ may adjust processing fees and/or add authentication services without prior notice if Merchant experiences a return rate outside the NACHA return thresholds, as determined by ACHQ in its sole and absolute discretion, or if ACHQ deems the authentication process Merchant subscribes to is not adequate for standards determined by ACHQ. ACHQ at its sole and absolute discretion will determine the standards of authentication and the rate of return acceptable for Merchant. Nothing herein limits the Merchant's obligation to comply with the Rules and all applicable Regulations.

2.3 REPRESENTATIONS REGARDING AUTHORIZATION

Merchant represents and warrants with respect to all Entries originated by Merchant and processed by ACHQ for Merchant that (1) each Receiver has authorized the debiting and or crediting of its account, (2) each Entry is for an amount agreed to by the Receiver, and (3) each Entry is in all other respects properly authorized. In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant agrees to defend, indemnify, and hold harmless ACHQ for any claims, losses, liabilities, costs, or expenses suffered or incurred (including attorneys' fees and costs) relating to, arising out of, or involving any breach of these representations and warranties or unauthorized Entries. These representations and warranties by Merchant shall survive termination of the Agreement. Merchant acknowledges and agrees that, from time to time, another person or entity may submit or modify transactions on behalf of the Merchant, including, without limitation, owners, principals, employees, officers, accountants or other designated third parties. Such a person or entity is referred to herein as a "Merchant Administrator." Merchant expressly agrees that ACHQ is also considered Merchant Administrator. Merchant agrees that all actions of a Merchant Administrator will be deemed to be actions by Merchant under this Agreement, and Merchant accepts full responsibility and liability for any and all acts and/or omissions of a Merchant Administrator, including, but not limited to, acts of negligence (whether active, passive, or gross negligence) and intentional or fraudulent acts.

2.4 IDENTIFYING NUMBERS

Merchant understands and agrees that ACHQ may rely solely on identifying numbers provided by Merchant to determine the bank and account of a Receiver even if the numbers identify a bank or account holder different from the one identified by Merchant. In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant shall defend, indemnify, and hold harmless ACHQ for any claims, losses, liabilities, costs, or expenses suffered or incurred (including attorneys' fees and costs) as a result of an incorrect account or other identification.

2.5 INTENTIONALLY OMITTED

2.6 REGULATORY COMPLIANCE

Merchant bears the final responsibility to ensure that Merchant's policies and procedures meet the requirements of the ACH Rules and all applicable Regulations. Merchant is encouraged to consult counsel regarding compliance with the Rules and Regulations whenever there is any doubt about compliance. Merchant represents and warrants that all Entries originated by Merchant and processed by ACHQ for Merchant comply with all applicable Rules and Regulations, including without limitation the following Regulations: 1) FTC Act (15 U.S.C. §§ 41, et seq.); 2) TSR (16 C.F.R. 310, et seq.); 3) Electronic Fund Transfer Act (15 U.S.C. §§ 1601, et seq.) and Regulation E (12 C.F.R 205, et seq.), if applicable; 4) Uniform Commercial Code Article 4-A, if applicable; 5) Federal Reserve Board Regulation J, if applicable; 6) the rules and sanctions laws of the Office of Foreign Assets and Control ("OFAC"); 7) Unlawful Internet Gambling Enforcement Act (31 U.S.C. §§ 5361, et seq.) and accompanying regulations (12 C.F.R. 233; 31 C.F.R. 132); 8) PACT Act (15 U.S.C. §§ 376, et seq., Jenkins Act (15 U.S.C. §§ 375, et seq. and accompanying regulations; and 9) all applicable state laws and regulations. Merchant further represents and warrants that it shall not originate any Entries that constitute (i) improper telemarketing in violation of the TSR or other applicable Regulations or Rules; (ii) sales or marketing of advance-fee credit cards in violation of the TSR or other applicable Regulations or Rules; (iii) restricted Internet gambling transactions; and/or (iv) unlawful Internet tobacco sales. Merchant represents and warrants that it will not transmit any Entries that violate the laws of the United States or any state or locality in which ACHQ or Merchant does business. These representations and warranties by Merchant shall survive termination of this Agreement. In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant shall defend, indemnify, and hold harmless ACHQ for any claims, losses, liabilities, costs, fines, or expenses suffered or incurred (including attorneys' fees and costs) relating to, arising out of, or involving any breach of these representations and warranties or failure to comply with any applicable Rules or Regulations. In addition to its cancellation rights described elsewhere in this Agreement, ACHQ may immediately cancel this Agreement if ACHQ, its ODFI or any regulatory agency believes that Merchant is violating or has previously violated any applicable Regulation or Rule or is in breach of these representations and warranties.

2.7 TAX NAME AND ID

Merchant shall provide to ACHQ its correct and accurate tax filing name and tax identification number for the U.S. Internal Revenue Service ("IRS"). In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant bears all liability and agrees to defend, indemnify and hold harmless ACHQ and its ODFI, including all of their directors, officers, employees and affiliates, from any and all claims, liabilities, losses, damages, fines, costs or other expenses (including attorneys' fees and costs) suffered or incurred arising out of, relating to or involving in any way Merchant's failure to provide an accurate tax filing name or tax identification number.

2.8 TAX REPORTING OBLIGATIONS

Merchant acknowledges that, pursuant to Section 6050W of the Internal Revenue Code, ACHQ is responsible for filing with the IRS annual information returns for all reportable payment transactions to Merchant for whom ACHQ processes transactions under this Agreement. Merchant shall cooperate with ACHQ and take all reasonable steps to aid its reporting obligations and compliance with Section 6050W, including, but not limited to, provide an accurate and verifiable tax filing name and tax identification number ("TIN") for each Merchant account. Merchant further acknowledges and agrees that, if it fails to provide an accurate tax filing name or TIN information, the IRS notifies ACHQ of a discrepancy between the information provided by Merchant and the IRS records, or if requested by the IRS for any reason, ACHQ shall be required to perform backup withholding from Merchant funding by deducting and withholding income tax in an amount based on the IRS withholding regulations at the time withholding is required from the gross amount of each reportable transaction pursuant to Section 6050W and its corresponding regulations. Merchant expressly authorizes ACHQ to withhold from Merchant's funding or debit Merchant's Account (or another account designated by Merchant if there are insufficient funds in the Account to cover the required withholding) for any and all backup withholding amounts required by Section 6050W and its corresponding regulations.

2.9 RECORDKEEPING REQUIREMENTS

Merchant shall keep all records of verifiable consumer authorizations for a period of two (2) years from the date an authorization is terminated or revoked. Merchant agrees to provide copies of such documents or records to ACHQ immediately upon written request from ACHQ.

2.10 NOTICE OF ERRONEOUS UNAUTHORIZED TRANSFER

Merchant agrees to promptly and regularly review all Entries and other communication received from ACHQ and to immediately notify ACHQ if there are any discrepancies between Merchant's records and those provided by ACHQ, the ODFI or Merchant's bank, or with respect to any transfer not authorized by Merchant. If Merchant fails to notify ACHQ within 7 days of the date ACHQ e-mails, mails, or otherwise provides a statement of account or other report of activity to Merchant, then Merchant will be solely responsible for all losses or other costs associated with any erroneous or unauthorized transfer.

2.11 INDEMNITY

In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant agrees to defend, indemnify and hold harmless ACHQ and its ODFI, including all of their directors, officers, employees and affiliates, from and against any and all claims, losses, liabilities, costs or expenses suffered or incurred (including attorneys' fees and costs) relating to, arising out of or involving any breach of the representations and warranties made by Merchant in this Agreement, the failure of Merchant or a Merchant Administrator to comply with the terms of the Agreement, the failure of Merchant or a Merchant Administrator to comply with the Rules, or any and all other applicable laws or Regulations, or by reason of ACHQ providing the services set forth in this Agreement. This paragraph shall survive termination of the Agreement.

2.12 BUSINESS DESCRIPTION AND PROHIBITED ACTIVITY

Merchant represents and warrants that all information in the Application and provided to ACHQ during underwriting, including the description of Merchant’s business, products, services, customers, ownership, and intended use of the services, is true, accurate, and complete, and Merchant will keep that information current. Merchant shall not use the services, directly or indirectly, for any business or activity prohibited by the Acceptable Use Policy, the Rules, ACHQ’s ODFI, or applicable Regulations, including any marijuana-related business or any business that cultivates, manufactures, distributes, or sells cannabis or cannabis-derived products that are unlawful under federal law, unless ACHQ has approved that business in advance and in writing.

Merchant shall notify ACHQ in writing at least thirty (30) days before any material change to its business, products, or services, any change in ownership of twenty-five percent (25%) or more, or any change in control. Any misrepresentation or undisclosed change is a material breach of this Agreement, entitles ACHQ to terminate this Agreement immediately under Section 4.9, and entitles ACHQ to hold funds under Section 4.11. This Section shall survive termination of the Agreement.

2.13 THIRD-PARTY PROCESSING AND KNOW YOUR CUSTOMER

Merchant shall originate Entries only for its own account and for its own customers. Merchant shall not act as a Third-Party Sender, payment facilitator, or processor, or originate Entries on behalf of any other person, unless ACHQ approves that activity in advance and in writing and Merchant executes any addendum ACHQ requires. If ACHQ approves, Merchant shall (i) perform customer identification, due diligence, and sanctions screening on every person on whose behalf it originates Entries, consistent with the Rules and the requirements of ACHQ and its ODFI, (ii) keep records of that diligence for at least five (5) years after the relationship with that person ends, and (iii) provide those records to ACHQ within five (5) business days of ACHQ’s request. Merchant’s failure to maintain or produce these records is a material breach of this Agreement. This Section shall survive termination of the Agreement.

3.0 ACHQ RESPONSIBILITIES

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3.1 ACCEPTING TRANSACTIONS

ACHQ will only be responsible for processing Entries that have arrived at its premises in proper format and on a timely basis. ACHQ will advise Merchant of any applicable cut-off time. Merchant does not have the right to cancel or amend any entry after submission to the ACH Network.

3.2 ORIGINATING TRANSACTIONS

ACHQ will use the information provided by Merchant to originate Entries to the ACH Network. Merchant acknowledges and agrees that ACHQ may reject Entries for any reason permitted or required by the Rules or applicable Regulations. Merchant also acknowledges and agrees that Entries or files may be rejected which exceed the threshold parameters identified and set for Merchant. Merchant also acknowledges and agrees that an Entry may be rejected if the Entry would cause ACHQ to violate any Federal Reserve or other regulatory risk control program, any other applicable Rule or Regulation, or ACHQ'S agreement with its ODFI. At Merchant's request, ACHQ will make reasonable efforts to reverse, modify, or delete an Entry, but will have no responsibility for the failure to comply with that request.

3.3 RETURNED ENTRIES AND NOCS

ACHQ will apply returned Entries to Merchant's Account when they are received. As described elsewhere in this Agreement, if Merchant does not have funds available in its designated Account sufficient to cover all returned Entries, Merchant acknowledges and agrees that ACHQ will debit any other bank account identified by Merchant to ACHQ (regardless of the timing, method or reason Merchant identified such account to ACHQ). ACHQ will create and make available to Merchant a report containing detailed information about returned Entries. If Merchant requests that the returned Entries be provided electronically, ACHQ may do so according to the Rules and Regulations regarding returned Entries. Merchant is solely responsible for all returned Entries.

3.4 SETTLEMENTS AND FINALITY

Merchant's account will settle in accordance with the funding schedule set for Merchant. The standard settlement cycle date is the second business day from the effective Entry date. If any Entry is returned beyond the settlement date, ACHQ will, at ACHQ's sole and absolute discretion, either apply the debit to the current day's settlement, or debit the Merchant's account for the amount of the returned Entry. If sufficient funds to cover returned Entries are not available in Merchant's Account, Merchant shall immediately remit payment to ACHQ to fully cover the amount of all returned Entries. As described elsewhere in this Agreement, Merchant agrees that, to fully cover all returned Entries, ACHQ may also debit any other bank account for Merchant about which it has account information, regardless of the timing, reason or manner in which ACHQ obtained information about the other bank account(s) for Merchant (including, but not limited to, bank account(s) that Merchant identifies to ACHQ or bank account(s) for Merchant that ACHQ identifies through its own lawful research or investigation).

3.5 NO WARRANTY

Merchant acknowledges and agrees that neither ACHQ nor its ODFI has control over the conditions under which Merchant uses the payment processing system and does and cannot warrant the results obtained by such use. ACHQ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE PROCESSING AND/OR ACHQ'S SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS OR THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ACHQ DOES NOT WARRANT THAT OPERATION OF THE PAYMENT PROCESSING SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. MERCHANT ACKNOWLEDGES THAT THE PAYMENT PROCESSING SYSTEM IS PROVIDED FOR USE BY MERCHANT "AS IS." MERCHANT FURTHER ACKNOWLEDGES THAT ACHQ BEARS NO RESPONSIBILITY FOR THE MERCHANT WEB SITE(S). MERCHANT ACKNOWLEDGES THAT AN AUTHORIZATION FOR PAYMENT IS NEITHER A WARRANTY THAT THE PERSON PRESENTING THE AUTHORIZATION IS THE RIGHTFUL ACCOUNT HOLDER NOR A PROMISE OR GUARANTEE BY ACHQ THAT IT WILL PAY OR ARRANGE FOR PAYMENT TO MERCHANT FOR THE AUTHORIZED TRANSACTION. MERCHANT ACKNOWLEDGES THAT AN AUTHORIZATION DOES NOT PREVENT A SUBSEQUENT REVERSAL OF A PREVIOUSLY AUTHORIZED TRANSACTION PURSUANT TO THIS AGREEMENT.

3.6 LIMITS OF LIABILITY

ACHQ will be responsible for the performance of ACH services as a Third Party Processor in accordance with the terms of this Agreement and the Rules and applicable Regulations. ACHQ will not accept responsibility for errors, acts, or failure to act by others, including but not limited to, banks, communication providers, common carriers, or clearing houses through which Entries may be passed and or originated. ACHQ is not responsible for any loss, liability or delay caused by fires, earthquakes, war, civil disturbances, power surges or failures, acts of governments, labor disputes, failures in communication networks, intervening negligent, criminal, or tortious acts of third parties who are not within ACHQ'S control or employ, legal constraints or other events beyond the control of ACHQ. ACHQ shall not be liable to Merchant for any delays in receipt or transmittal of funds or errors in credit or debit entries caused by third parties, including, without limitation, the Automated Clearing House, any depository financial institution, or any agent of Merchant.

4.0 ADDITIONAL TERMS AND CONDITIONS

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4.1 FEES AND PAYMENT

ACHQ will notify Merchant in writing of fees due for services rendered. Notice of any changes to the existing fee structure as stated in this Agreement (including new or increased fees) will be made in writing to Merchant within 30 days of such changes or any new fees becoming effective. Merchant has the right to cancel the Agreement in writing at that time. Continued use of the services provided by ACHQ after notice of fee changes is provided to Merchant shall constitute Merchant's agreement to any new or changed fees. In addition to the fees set forth in the Application, in any ACHQ proposal or pricing schedule accepted by Merchant, or in any written fee notice provided under this Section (collectively, the “Fee Schedule”), Merchant shall pay the fees to ACHQ set forth below: Return Fees: If Merchant returns a transaction initiated by ACHQ and the transaction is in accordance with this Agreement, Merchant will be charged a $35.00 return fee per occurrence. ACHQ, in its sole and absolute discretion, may suspend settlements for Merchant until payment for returned Entries or return fees is fully remedied. Chargeback and High Return Rate Fees: If, at the time Merchant is billed for chargebacks, Merchant's High Risk or Unauthorized Return Rate exceeds 0.5% using a NACHA approved method of calculation, a high-risk surcharge of $15.00 will be added to each chargeback received during that billing period and an additional 1.0% discount rate will be added to Merchant's Account, to be charged retroactively for the previous 30 days. Attorneys' Fees: If Merchant becomes obligated to pay ACHQ's attorneys' fees pursuant to any provision in of this Agreement, such fees shall include in-house counsel fees at the rate of $400 per hour, as well as the actual hourly rate for outside counsel. Payment: Merchant agrees that ACHQ may collect any and all amounts due by Merchant, including, without limitation, all fees set forth in the Application and this Agreement, returned Entries, chargebacks, refunds or credits issued to Receivers, fines, damages or costs and expenses incurred by ACHQ to perform services for Merchant (including attorneys' fees and costs to enforce any of Merchant's obligations under this Agreement), by billing Merchant, debiting Merchant's Account, debiting the Reserve Account or debiting any other bank account for Merchant about which ACHQ obtains account information. Merchant shall provide ACHQ the information necessary to collect all amounts owed by Merchant under this Agreement or the Rules or applicable Regulations. Merchant will be responsible for any and all attorneys' fees and other costs and expenses ACHQ may incur in collecting any fees or other amounts Merchant owes to ACHQ.

4.2 VOLUME ANALYSIS

ACHQ will routinely analyze Merchant origination and return activity. In the event Merchant exceeds a return rate outside the maximum return rates determine by NACHA Rules, ACHQ shall have the right to place all of the provisional or final credit provided to Merchant for each Debit Entry originated by it into the Reserve Account, to be held, applied, and released in accordance with Section 4.11. In addition to all other Merchant accounts from which ACHQ is authorized under this Agreement to obtain payment of funds owed by Merchant, ACHQ shall have the right to offset and pay itself from the account described in this paragraph for all returned Entries, chargebacks, refunds or credits issued, fees, damages (including liquidated damages), or other costs and expenses (including attorneys' fees and costs) that may arise out of ACH processing for Merchant and for which Merchant has agreed to pay ACHQ pursuant to the terms of this Agreement.

4.3 CONFIDENTIALITY

Each party represents, warrants, and mutually agrees that all information concerning the other party which comes into its possession during the term of this Agreement shall be maintained as confidential and shall not be used or divulged to any other party except as necessary to permit the activities contemplated under this Agreement or as required by law. Notwithstanding the foregoing, it shall not be a breach of this Confidentiality provision for ACHQ to disclose Merchant's confidential information if required to do so under law or in a judicial or other governmental investigation or proceeding, provided Merchant has been given prior notice to the extent not prohibited or requested by the government agency or Court Order and ACHQ has sought all available safeguards against widespread dissemination prior to such disclosure.

Nothing in this Agreement requires ACHQ to disclose, and ACHQ shall not disclose, any suspicious activity report, any information that would reveal the existence of a suspicious activity report, or any confidential supervisory information, as provided by 31 U.S.C. 5318(g)(2) and other applicable law.

4.4 GOVERNING LAW AND VENUE

This Agreement, all questions related to the Agreement's validity, interpretation, performance, execution and inducement, and all claims related to, arising under, or involving in any way this Agreement, the services by ACHQ, or Merchant's business relationship with ACHQ, or Merchant's business relationship with ACHQ are governed by, and shall be construed under, the laws of the State of Florida without regard for the principles and conflicts of law. All such claims shall exclusively be adjudicated in a State or Federal Court located in Sarasota County, FL, which the parties agree has exclusive personal jurisdiction over them and is the proper venue. The parties waive any objections to personal jurisdiction or venue in Sarasota County, FL. The prevailing party in any such action shall be entitled to recover its reasonable attorneys' fees and costs (including expert witness fees and costs) incurred in the matter.

4.5 JURY TRIAL WAIVER

ACHQ AND MERCHANT BOTH IRREVOCABLY WAIVE A TRIAL BY JURY UNDER BOTH STATE AND FEDERAL LAW IN ANY ACTION, LAWSUIT, OR DISPUTE ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, ACHQ'S SERVICES, OR THE TRANSACTIONS RELATING TO SUBJECT MATTER OF THIS AGREEMENT.

4.6 AGREEMENT MODIFICATION

ACHQ may modify the terms and conditions of this Agreement upon sixty (60) days' written notice. Use of services after any such modification will evidence acceptance of the modification(s).

Notwithstanding the foregoing, ACHQ may modify this Agreement effective immediately, or on such shorter notice as is practicable, where the modification is required by the Rules, ACHQ’s ODFI, or applicable Regulations.

4.7 NOTICES

Each notice required by this Agreement shall be in writing and will be effective when sent unless notice is provided by First Class Mail, return receipt requested, which shall be effective when received. Notice may be provided by: (1) To Merchant: (a) by First Class Mail, return receipt requested, at the Merchant's business address listed in this Agreement or on the ACHQ Enrollment Form. (b) by facsimile at Merchant's fax number currently on file. (c) by electronic mail at the Merchant's email address currently on file. (d) by posting notice to the Merchant Portal, which shall be effective at the next Merchant login to the Merchant Portal. (2) To ACHQ: (a) by First Class Mail, return receipt requested to 1990 Main St, Suite 750 Sarasota, FL 34236: or (b) by email to support@achq.com with a copy to compliance@achq.com

4.8 EXCLUSIVE AGREEMENT

Intentionally Omitted

4.9 TERM AND TERMINATION

This Agreement is effective from the date hereof and shall continue for a term of one (1) year. Thereafter, this Agreement shall be automatically renewed for consecutive one (1) year periods unless either party gives the other written notice of non-renewal at least 60 days prior to the expiration date of the current term. This Agreement may be terminated by ACHQ at any time with sixty (60) days’ written notice or as otherwise provided by the terms of this Agreement. If Merchant wants to terminate the Agreement before the initial one-year term or any renewal term has expired, Merchant shall give ACHQ sixty (60) days’ written notice of Merchant’s intent to terminate the Agreement. ACHQ must approve the Merchant’s request for early termination in writing, which approval will not be unreasonably withheld.

Notwithstanding ACHQ’s rights to cancel this Agreement as stated elsewhere in this Agreement, ACHQ may also immediately terminate this Agreement and immediately suspend all processing for Merchant without providing advance written notice to Merchant: (1) upon the request of ACHQ’s ODFI or any regulatory agency (regardless of the reason for the request), (2) if ACHQ, its ODFI or any regulatory agency believes that Merchant has breached this Agreement, has breached any representations and warranties made in this Agreement, is violating or has previously violated any applicable Regulations or Rules and/or has initiated any unauthorized Entries, (3) if ACHQ is unable to process transactions for Merchant for any reason that is out of ACHQ’s control or ACHQ no longer has the ability to process transactions for Merchant, (4) if Merchant becomes insolvent, makes an assignment for the benefit of creditors, files or has filed against it a petition in bankruptcy, or has a receiver or similar officer appointed, (5) upon a change in control of Merchant not approved in writing by ACHQ, or (6) if Merchant has made any misrepresentation in the Application, in underwriting, or under Section 2.12.

Immediately upon termination of the Agreement, whether by expiration or otherwise and whether or not the Agreement was terminated for cause, ACHQ’s obligation to provide services under the Agreement shall cease, and any unpaid amounts due and owing by Merchant shall become immediately due and payable. Payment for any services rendered or any other obligation or liability owing at the time of termination shall not be affected by termination of this Agreement. At the time of termination, for any reason and whether or not a Reserve Account was previously required, ACHQ will place all unsettled funds and all funds due to be settled to Merchant into a Reserve Account, to be held, applied, and released solely in accordance with Section 4.11 (Reserve Account).

4.10 DAMAGE WAIVER

ACHQ will not be liable to Merchant for any special, consequential, indirect, or punitive damages whether or not: (1) any claim for these damages is based on tort or contract law, or (2) either party knew or should have known the likelihood of these damages in any situation. In no event will ACHQ’s aggregate liability to Merchant arising out of or relating to this Agreement exceed the total fees paid by Merchant to ACHQ in the three (3) months preceding the event giving rise to the claim. ACHQ makes no representations or warranties other than those expressly made in this Agreement.

4.11 RESERVE ACCOUNT

(a) Establishment and funding. ACHQ may require a Reserve Account at onboarding, at any time during the term under Section 4.2 or Section 4.12, and in every case upon termination under Section 4.9. ACHQ may fund the Reserve Account by accepting a wire transfer from Merchant, by deducting a percentage of each debit origination until the required reserve amount is reached, by withholding settlement funds, or by debiting any account of Merchant described in Section 1.2. Merchant acknowledges and agrees that its Reserve Account may be commingled with reserve funds held for other merchants and that no interest will accrue or be paid on Reserve Account funds.

(b) Minimum hold. All funds placed in the Reserve Account will be held for a minimum of two (2) years following the later of (i) the last debit, credit, or return Entry on Merchant’s account, or (ii) the date this Agreement terminates. The two-year period is a minimum holding period. It is not a release date, and the passage of two years does not by itself entitle Merchant to any release of funds.

(c) Release at ACHQ’s discretion. After the minimum hold, any release of Reserve Account funds is at ACHQ’s sole discretion, exercised in good faith. ACHQ may continue to hold any or all Reserve Account funds for so long as ACHQ determines that any return, chargeback, refund, claim, fine, assessment, indemnity obligation, audit, investigation, or inquiry by ACHQ’s ODFI, NACHA, or any regulatory or law enforcement agency relating to Merchant is pending or reasonably anticipated. ACHQ may condition any release on Merchant’s completion of every outstanding request under Sections 2.9, 2.13, and 4.13. Merchant may request a release review in writing after the minimum hold has run. Any release will be of the balance remaining after all offsets under Section 4.11(d), and ACHQ’s failure to respond to a request is not consent to release.

(d) Offset and recoupment. ACHQ may offset, recoup, and pay itself from the Reserve Account for any and all amounts Merchant owes or may owe under this Agreement, whether liquidated, unliquidated, or contingent, and whether arising before or after termination, including returned Entries, chargebacks, refunds and credits, fees, fines, penalties, and assessments imposed by ACHQ’s ODFI, NACHA, or any regulatory agency, Merchant’s indemnity obligations under Sections 2.3, 2.4, 2.6, 2.7, 2.11, 2.12, and 2.13, and ACHQ’s costs of investigation, audit, compliance review, and reconstruction of customer identification or transaction records, together with attorneys’ fees and costs (including in-house counsel fees at the rate stated in Section 4.1). These rights are in addition to every other right of ACHQ to collect amounts owed by Merchant.

(e) Ownership of funds. Until all amounts owed by Merchant and all of its obligations, including its obligation to pay all returns, are paid to ACHQ in full, all funds in the Reserve Account shall be considered to be held by ACHQ for ACHQ’s sole interest, benefit, and protection, shall be considered to be the property of ACHQ, and shall not be considered to be held in trust for, held for the benefit of, or a deposit of Merchant, or an asset or property of Merchant. ACHQ owes Merchant no fiduciary duty with respect to Reserve Account funds.

(f) Security interest. To secure all of its obligations under this Agreement, Merchant grants ACHQ a security interest in the Reserve Account, all funds held in it, all settlement funds in ACHQ’s possession or control, and all proceeds of the foregoing. Merchant authorizes ACHQ to file any financing statement necessary to perfect this security interest. Merchant shall notify ACHQ in writing within two (2) business days of any insolvency, assignment for the benefit of creditors, bankruptcy, or receivership proceeding involving Merchant. ACHQ’s rights under this Section survive any such proceeding to the fullest extent permitted by law.

(g) Survival. This Section shall survive termination of the Agreement until ACHQ has released or applied all Reserve Account funds.

4.12 FUNDING POLICY

Merchant acknowledges and agrees that funding for each origination will be set by ACHQ at ACHQ's sole and absolute discretion. Unless expressly agreed to in writing the amount disbursed will be the origination amount less returned items and any reserve amount as required. ACHQ reserves the right to change the funding schedule, average balance requirements or reserve requirements at its sole and absolute discretion for any Merchant regardless of SEC type.

Any reserve required under this Section is a Reserve Account governed by Section 4.11.

4.13 AUDIT REQUIREMENTS

ACHQ and its ODFI shall have the right to audit Merchant concerning its compliance with this Agreement, the Rules, and applicable Regulations. Upon request, Merchant shall provide, within five (5) business days, all records ACHQ or its ODFI reasonably requests, including authorizations, customer identification and due diligence records for Merchant and for every person on whose behalf Merchant originates Entries, customer and transaction records, and policies and procedures, and shall permit on-site inspection on reasonable notice. Merchant shall bear the cost of any audit that identifies a material breach of this Agreement or the Rules. Merchant’s failure to cooperate fully is a material breach of this Agreement. This Section shall survive termination of the Agreement for five (5) years.

4.14 CUSTOMER SERVICE

Merchant agrees to maintain, support and staff a customer service line with a U.S. domiciled telephone number during normal U.S. business hours. If Merchant fails to maintain a working customer service telephone line, then ACHQ will, at its sole discretion, process customer services call on behalf of Merchant at a charge of $5.00 per inbound/outbound call and $5.00 per refund processed.

4.15 NON-SOLICITATION

Merchant agrees that, without ACHQ's prior written consent, it will not, for a period of one (1) year from the date this agreement is terminated, directly or indirectly solicit for employment, or employ any person who is now employed by ACHQ.

4.16 ENTIRE AGREEMENT

This Agreement makes up the entire Agreement between the parties concerning ACH services and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions whether oral or written of the parties, and there are no warranties, representations and/or agreements among the parties in conjunction with the subject matter hereof except as set forth in this Agreement. There are no third-party beneficiaries of this Agreement.

4.17 SEVERABILITY

In the event any provision of this Agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, only that provision shall be severed from this Agreement and the remaining provisions shall continue in force, provided that each Party preserves the substantial benefits of the bargain contemplated in this Agreement.

4.18 INTERPRETATION; WAIVER

Any waiver by a party of a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach. The parties agree that, should any provision or term of this Agreement require interpretation or construction, this Agreement will be interpreted or construed without any presumption that the provisions of this Agreement are to be construed against the party that prepared this Agreement.

4.19 ASSIGNMENT

ACHQ shall have the right to assign this Agreement, including its rights and performance obligations under the Agreement, to any corporation or other entity which ACHQ may hereafter merge or consolidate, or to which ACHQ may transfer all or substantially all of its assets provided such corporation or other entity assumes all of ACHQ'S obligations hereunder. Upon assignees or transferee's assumption of ACHQ'S obligations pursuant to this Agreement, ACHQ shall have no further liability to Merchant and Merchant shall look solely to any assignee or transferee for performance of any and all obligations arising under or related to this Agreement.

4.20 EXECUTION IN COUNTERPARTS' COPIES

This Agreement, including all Exhibits and Addendums thereto (which are incorporated as part hereof) may be executed in the original or by facsimile or e-mail in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile and photocopies of this Agreement shall be considered originals for all purposes, including, but not limited to, any court or arbitration proceedings. Merchant acknowledges that they may not receive a countersigned Agreement, exhibits or addendums from ACHQ unless such countersigned Agreement is requested by Merchant in writing. Acceptance of all terms and conditions is upon ACHQ's receipt of the agreement executed by Merchant.

4.21 BINDING CONTRACT

This Agreement becomes binding on Merchant when Merchant signs or electronically accepts the Application or this Agreement, and on ACHQ when ACHQ approves the Application, as evidenced by ACHQ’s execution, written notice of approval, or commencement of processing for Merchant, whichever occurs first.

4.22 ELECTRONIC ACCEPTANCE AND VERSION

Merchant may accept this Agreement electronically, and Merchant’s electronic acceptance has the same force and effect as a handwritten signature. The version of this Agreement that governs is the version posted at achq.com/legal, with its revision date, on the date Merchant accepts it, as later modified under Section 4.6. ACHQ will keep a record of the version Merchant accepted.

4.23 SURVIVAL

Sections 1.2, 2.3, 2.4, 2.6, 2.7, 2.9, 2.10, 2.11, 2.12, 2.13, 3.5, 3.6, 4.1, 4.3, 4.4, 4.5, 4.9, 4.10, 4.11, 4.13, 4.15, 4.17, 4.18, 4.22, 5.0, and 6.0, and any other provision that by its nature is intended to survive, shall survive termination or expiration of this Agreement.

5.0 PERSONAL GUARANTY

To induce and in consideration of ACHQ’s acceptance of the Merchant Application and this Agreement, the undersigned absolutely and unconditionally guarantees to ACHQ full and prompt payment and performance when due of each and every condition and obligation of Merchant under this Application and Agreement, including all exhibits and amendments thereto, and including all obligations under Sections 2.11 and 4.11 whether arising before or after termination. The undersigned guarantor(s) further acknowledges and agrees to pay all expenses of collection on this guaranty, including reasonable attorneys’ fees incurred by reason of the default of the Merchant or the default of the guarantor(s). The undersigned guarantor(s) waives prior demand on Merchant. ACHQ shall not be required to first proceed against Merchant, the Reserve Account, or any other security to enforce any other remedy before proceeding against the undersigned personal guarantor(s). If there is more than one guarantor, their obligations are joint and several.

This is a continuing and irrevocable guaranty which shall not be discharged or affected by the death of the undersigned, or by the insolvency, assignment for the benefit of creditors, bankruptcy, or dissolution of Merchant, shall bind heirs, administrators, representatives and assigns and may be enforced by or for the benefit of any other successor of ACHQ. This personal guaranty shall continue until all obligations of Merchant under this Agreement, and any addendum or amendment thereto, have been paid and performed in full, although enforcement may be sought subsequent to any termination.

6.0 THIRD-PARTY SENDER CUSTOMER/ORIGINATOR ACKNOWLEDGMENT

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Merchant confirms and agrees that it has authorized ACHQ ("TPS") to act as Merchant's agent in processing ACH Entries for Merchant, and that TPS will establish one or more clearing accounts with, and submit ACH Entries on behalf of Merchant to one or more originating depository financial institutions (each, an “ODFI”). Merchant: (i) assumes the responsibilities of and makes the warranties of an Originator under the Operating Rules of the National Automated Clearing House Association (the "Rules") and agrees to reimburse ODFI for returns, reversals, adjustments, reclamations, and warranty claims and responsibilities related to Merchant's ACH Entries; (ii) agrees to comply with the Rules, including but not limited to the requirements of Article Two (Rights and Responsibilities of ODFIs, Their Originators and Third Party Senders), Rule 2.15 (Obligations of Third-Party Senders, and of ODFIs and Originators that Use Third Party Senders), and if international ACH Entries are initiated by Merchant, the Rules applicable to IAT ACH Entries, (iii) agrees to comply with all applicable state and federal laws, rules and regulations, including but not limited to sanction laws administered by the Office of Foreign Assets Control ("OFAC"), the Electronic Funds Transfer Act, the Unlawful Internet Gambling Enforcement Act and Federal Reserve Board Regulation E (the foregoing and the ACH Rules are, collectively, the "Applicable Rules"); and (iv) acknowledges that ACH Entries may not be initiated that violate the laws of the United States, including but not limited to the sanctions laws, regulations, and orders administered by OFAC, laws, regulations, rules, and orders administered by the Financial Crimes Enforcement Network ("FinCEN") (as such terms are defined below), and any state laws, regulations, or orders applicable to the providers of ACH payment services. Merchant represents and warrants as to each ACH Entry that it has obtained the necessary authorizations under the Rules and Applicable Rules and that it shall not initiate any funds transfer after the authorization for the same has been revoked (or the agreement between Merchant and TPS has been terminated). With respect to each IAT Entry TPS sends to ODFI on behalf of Merchant, Merchant represents and warrants to ODFI that such IAT Entry is in compliance with United States law, including, but not limited to, rules promulgated and programs administered by OFAC and FinCEN, that no such IAT Entry violates United States law, including, but not limited to, rules promulgated and programs administered by OFAC and FinCEN, that neither TPS nor the Merchant are acting on behalf of or transmitting funds to any party subject to OFAC sanctions and that such IAT Entry complies with the laws and payment system rules of the receiving country. Merchant acknowledges that ODFI and other parties must comply with the Rules and United States law for IAT Entries. The performance by each of these parties, including ODFI, of obligations with respect to IAT Entries may cause delays in processing, settlement, and/or availability of IAT Entries. Merchant waives and releases ODFI from any liability or obligation, including, but not limited to, funds availability obligations, caused by or arising out of any such delay associated with IAT Entries. Merchant understands that ODFI has the right to: (i) review, monitor, and audit Merchant's ACH transactions, processes, and procedures for compliance with this Agreement and the Rules; (ii) restrict or limit the amount or type of ACH Entries processed for Merchant; and (iii) suspend, discontinue, or terminate ACH processing based on its assessment of the risk posed to the ODFI and/or the breach or termination of its agreement with TPS. Merchant is responsible for the results of using a TPS, the services, and for the accuracy and adequacy of the data Merchant or TPS provides. Merchant authorizes ODFI to act on any instruction which has been or reasonably appears to have been sent by TPS or Merchant, including but not limited to funds transfer instructions. ODFI is not obliged to take any further steps to confirm or authenticate such instructions and will act on them without getting further confirmation. Merchant understands that if it or the TPS provides ODFI with incorrect information or if there is any error in the instruction it accepts full responsibility for losses resulting from any of the errors, duplication, ambiguities, or fraud in the information that was provided to ODFI. ODFI is not responsible to third parties (such as, but not limited to, third party service providers and the third parties to whom wire or ACH debit or credits are transmitted hereunder) and Merchant shall defend, indemnify, and hold ODFI harmless from, the actions or omissions of TPS, or any claim made against ODFI arising out of Merchant's use of the services, breach of this Agreement, or breach of any warranty under the Rules. IN NO EVENT WILL ODFI BE LIABLE OR RESPONSIBLE FOR, AND TPS AND MERCHANT BEAR ALL RISK ASSOCIATED WITH, FOREIGN EXCHANGE CONVERSION AND ANY GAINS AND LOSSES RESULTING FROM THE CONVERSION OF CURRENCIES IN CONNECTION WITH ANY ENTRY. This addendum shall survive the termination of the agreement between TPS and ODFI. Notwithstanding anything to the contrary elsewhere in the Agreement between TPS and Merchant, ODFI shall be considered an intended beneficiary of this Acknowledgment and is entitled to enforce its terms. This Acknowledgment is agreed to in consideration of ODFI's agreement to serve as ODFI. Merchant waives notice of the ODFI's acceptance of this Acknowledgment. Notice with Respect to Non-Consumer ACH Wholesale Credit Transactions and UCC Article 4A (1) Merchant Entries may be transmitted through the Automated Clearing House; (2) The rights and obligations of the Originator with respect to such payments shall be construed in accordance with and governed by the laws of the State of Florida unless it has been otherwise agreed that the law of some other state shall govern; (3) Credit given by a Receiving Depository Financial Institution (RDFI) with respect to an Automated Clearing House (ACH) credit entry is provisional until the RDFI receives final settlement for such entry through a Federal Reserve Bank or as otherwise provided for under Article 4A; and (4) If a RDFI does not receive such final settlement or payment, you are hereby notified and agree that the RDFI is entitled to a refund from the Receiver the amount of the credit to the Receiver's account, and the party making payment via such entry (i.e. the originator of the entry) shall not be deemed to have paid the amount of such entry.