Technology Reseller Agreement

By using PaidYET Partner Portal and any other system as a applicable to this TECHNOLOGY RESELLER AGREEMENT (Agreement), you are deemed to have agreed to all terms, conditions, use, and notices contained or referenced herein. This Agreement is made effective by PAYMINTZ, INC., D/B/A PAIDYET (“PAIDYET”).

WHEREAS, PAIDYET provides a secure, high performance SaaS platform along with a broad range of transaction processing, security and reporting products and services and related goods and services (the “PAIDYET Gateway”) and PAIDYET wishes to expand its market share by retaining Reseller to assist in marketing its PAIDYET Gateway to persons or entities wishing to purchase the PAIDYET Gateway (“Merchants”) from PAIDYET.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Appointment

(a) Subject to the terms and conditions of this Agreement, PAIDYET hereby appoints Reseller as a reseller of the PAIDYET Gateway. Reseller shall interact with entities and individuals in order to obtain information from them as to whether they are interested in purchasing the PAIDYET Gateway. Reseller will obtain all information and documentation reasonably required by PAIDYET. Reseller acknowledges that all Merchants are to be approved by PAIDYET in its sole discretion and Merchants will be able to utilize the PAIDYET Gateway effective only upon such approval.

(b) The parties agree that at all times, PAIDYET owns all right, title and interest to the PAIDYET Gateway, all alterations, modifications, improvements, derivatives and the documentation provided to or by Reseller in connection with this Agreement. Reseller shall not remove or alter any copyright notices or proprietary legends affixed by PAIDYET to the PAIDYET Gateway. PAIDYET shall also have sole and exclusive ownership of all right, title, and interest in and to its proprietary information and materials, including any derivative works thereof, including ownership of all copyrights, trademarks, service marks, patents, and trade secrets pertaining thereto (collectively, the “Proprietary Information”). The PAIDYET Gateway is expressly included within the meaning of the Proprietary Information. Reseller may use the PAIDYET Gateway and Proprietary Information, subject only to the rights and privileges expressly granted by PAIDYET for purposes of this Agreement.

(c) PAIDYET may provide the PAIDYET Gateway directly or through third party vendors. In doing so, PAIDYET shall use commercially reasonable efforts to provide the PAIDYET Gateway and maintain it in an uninterrupted and error-free fashion consistent with its practices in effect as of the date of this Agreement.

However, the parties acknowledge that the PAIDYET Gateway is a computer network-based service which may be subject to outages, data loss and delay occurrences. In such an event, PAIDYET shall use commercially reasonable efforts to diligently and promptly remedy any and all material interruptions and when possible notify Reseller. Nonetheless, PAIDYET will not be liable in any manner for any data losses, interruptions, outages, or other delay occurrences relating to the PAIDYET Gateway by PAIDYET or its vendors.

(d) Except as expressly provided to the contrary in this Agreement, Reseller shall not, and shall not knowingly cause or permit any non-party, to use or reproduce the PAIDYET Gateway. Reseller shall not, and shall not knowingly cause or permit any non-party, to disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the PAIDYET Gateway, or otherwise apply any procedure or process to the PAIDYET Gateway in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the PAIDYET Gateway or any algorithm, process, procedure or other information contained in PAIDYET Gateway. Except as expressly authorized herein, Reseller may not rent, lease, assign, sublicense, transfer, modify, alter, or time share the PAIDYET Gateway.

(e) Reseller may elect to either (i) Reseller Payment to PAIDYET or (ii) PAIDYET Payment to Reseller, as outlined in the Partner’s Partner Portal account.

• (i) Reseller agrees to pay PAIDYET for the PAIDYET Gateway on a monthly basis via deduction of all applicable fees directly from Reseller’s bank account. Reseller shall provide PAIDYET with all necessary bank account, routing and related information. PAIDYET will deduct automatically all such fees and charges within a time frame left to the full and singular discretion of PAIDYET, regardless of the status of the Reseller’ bank account.
• (ii) PAIDYET shall pay the Residual payment to Reseller, in situations when Reseller earns a Residual payment, on the first business day of the month following the month in which PAIDYET collects the applicable fees from the related Merchants. Payments to Reseller will be deposited into Reseller’s bank account. If Reseller’s bank account number and/or federal income tax ID number changes, Reseller shall promptly provide PAIDYET with written notice of the change and the new number(s).
• “Residual” means the difference between the Sell Rate and any fees associated with providing the services under this Agreement. “Sell Rate” means the amount PAIDYET actually bills a Merchant for a specific product or service, as agreed upon by the Reseller and Merchant during the setup process. Partner fees shall be held in strict confidence by the parties hereto. PAIDYET shall have the right to change this plan at any time in its sole discretion by providing thirty (30) days’ written notice to Reseller. Reseller shall have sixty (60) days from the receipt of any invoiced fees to notify PAIDYET of any errors in or disputes of fees invoiced and debited. If Reseller does not notify PAIDYET within the sixty (60) day time period, Reseller shall be deemed to have accepted without question such payment and may not in the future contest the amount it was credited or debited or seek reimbursement for any discrepancies.
• The Transaction fee is applicable to any authorization attempt, including but not limited to, refund, adjustment, sale, capture, decline, refund, or void and any form of transaction for the purpose of processing payments, including but not limited to, debit, credit, gift, P2P, and ACH transactions. Additional costs not listed that are applicable and will be separately based on then current rates include but are not limited to, terminals, device programming, shipping and handling, and other related services.

(f) Reseller shall comply at all times with, and require Merchants and/or any third party through whom Reseller may offer the PAIDYET Gateway (“Other Resellers”) to comply with all applicable and then-current legal obligations and security measures, including, without limitation, those issued by the United States Government, federal, state and municipal laws and ordinances, the Card Association, the Federal Trade Commission, the PCI Security Standards Council, and any other governing body. Reseller shall comply with, and require Merchants and/or Other Resellers to comply with, all PAIDYET security protocols, notices and safeguards in effect during the term of this Agreement.

(g) During the term of this Agreement, Reseller, its principals and its affiliates shall not enter into any agreement to solicit Merchants for any payment gateway company that competes with PAIDYET or any of PAIDYET’s vendors, without PAIDYET’s prior written consent, nor shall Reseller, its principals or any of its affiliates enter into any relationship with any organization or entity that would affect an indirect relationship with any such company.

2. Independent Contractors

The relationship of PAIDYET and Reseller is that of independent contractors. Neither party nor its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of the other party, nor do they have any authority to bind the other party by contract or otherwise to any obligation.

3. Term and Termination

(a) The initial term of this Agreement shall be for a period of three (3) years, commencing on the date first set forth on the application. This Agreement shall thereafter be automatically renewed for additional terms of one (1) year each unless either party notifies the other no later than thirty (30) days prior to the end of the current term that it does not wish to renew this Agreement. Either party may terminate this Agreement if the other party commits a material breach of this Agreement that is not cured within fifteen (15) days of written notice. PAIDYET may terminate this Agreement for any reason, or no reason at all, by providing Reseller with seven (7) days written notice.

(b) Effect of Termination. Upon termination of this Agreement: (a) Reseller’s license to resell the PAIDYET Gateway shall be automatically and immediately revoked (however any licenses previously purchased shall be honored until the date of their expiration), and (b) PAIDYET shall take over the duties of providing the PAIDYET Gateway to Merchants. Any and all compensation and residuals related to the Merchants placed under this Agreement shall terminate on the first day calendar month after any termination or expiration of this Agreement. Reseller, if requested by PAIDYET in writing, will assign all merchant agreements to PAIDYET and PAIDYET shall be discharged and released of any obligation to pay compensation to Reseller.

4. Indemnification

Reseller agrees to indemnify, defend, and hold harmless PAIDYET, its employees, Resellers and agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by Reseller, Merchant or any employee, agent or affiliate of Reseller to comply with the terms of this Agreement; (ii) any warranty or representation made by Reseller being false or misleading; (iii) any representation or warranty made by Reseller or any employee or agent of Reseller to any third person other than as specifically authorized by this Agre ment, (iv) any claims related to the PAIDYET Gateway, (v) negligence of Reseller, Merchants or its subcontractors, agents or employees, or (vii) any alleged or actual violations by Reseller, Merchants or its subcontractors, employees or agents of any card association rules, governmental laws, regulations or card association rules.

5. Disclaimer of All Warranties

THE PAIDYET GATEWAY IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. PAIDYET DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO RESELLER AND ANY THIRD PARTIES AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PAIDYET OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF PAIDYET’S OBLIGATIONS.

6. Limitation of Liability

PAIDYET SHALL NOT BE LIABLE TO RESELLER OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PAIDYET GATEWAY, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF PAIDYET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL PAIDYET’S TOTAL LIABILITY TO RESELLER OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE THOUSAND DOLLARS ($1000) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.

7. Non-Solicitation

During the period that this Agreement is in effect and for the three (3) year period immediately following termination of this Agreement, each party shall not directly or indirectly through another entity (i) call on, solicit or service any customer, supplier, licensee, licensor, consultant, contractor or other business relation of the other party or its respective subsidiaries in order to induce or attempt to induce such person to cease doing business with the other party or its subsidiaries, or in any way to intentionally interfere with the relationship between any such customer, supplier, licensee, licensor, consultant, contractor or other business relation and the other party or its subsidiaries (including, without limitation, making any negative statements or communications about the other party or its subsidiaries) or (ii) intentionally call on, solicit, or take away or attempt to call on, solicit, or take away any of the other party ‘s customers and vendors on whom the party called or became acquainted during its relationship with the other party, either on its behalf or that of other person, firm, or corporation.

8. Confidential Information

The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the PAIDYET Gateway and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure.

9. Intellectual Property

“Intellectual Property” means all of the following owned by a party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.” Other than the express licenses granted by this Agreement, PAIDYET grants no right or license to Reseller by implication, estoppel or otherwise and PAIDYET shall own all right and title to (i) the PAIDYET Gateway, (ii) any modifications, improvement, suggested changes or other changes to the PAIDYET Gateway made by Reseller or (iii) any Intellectual Property Rights of PAIDYET. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of PAIDYET, in the PAIDYET Gateway) and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. PAIDYET (and not Reseller) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for the PAIDYET Gateway and any Intellectual Property Rights incorporated therein. Reseller will cooperate with PAIDYET in pursuing such protection, including without limitation executing and delivering to PAIDYET such instruments as may be required to register or perfect PAIDYET’s interests in any Intellectual Property Rights and any assignments thereof. Reseller shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from PAIDYET in connection with this Agreement.

10. Agreement and Effect

This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall assign, delegate, subcontract, license, franchise, or in any manner attempt to extend to any third party any right or obligation under this Agreement except as otherwise permitted herein without the prior written consent of the other party; provided, however, PAIDYET may assign this Agreement and its rights hereunder to a purchaser of all or substantially all of its assets or equity. This Agreement sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, shall be effective unless assented to in writing by both parties.

In any action arising from the alleged breach of this Agreement, or to enforce this Agreement, the final prevailing party will recover its reasonable attorneys’ fees, costs and expenses.

11. Dispute Resolution

All disputes arising under or in connection with the Agreement will initially be referred to the senior executives of each party. The senior executives will use their best efforts to resolve the dispute informally and amicably. If, after negotiating for thirty (30) days (or for some longer period if the parties agree), no resolution of the dispute is reached by the senior executives, the parties will submit the dispute to binding arbitration in California pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and the procedures set forth in paragraph 10. Any controversy or claim arising out of or relating to this contract, or the breach, termination, enforcement, interpretation, or validity thereof, including determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules effective as of the date of this Agreement, except as specified below. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be in Los Angeles County, California, and the number of arbitrator(s) shall be one. In applying the AAA’s Commercial Arbitration Rules, the parties agree to the following exceptions: (1) the procedures for Large, Complex Commercial Disputes shall not apply; and (2) except for the direct exchange of documents, exhibits, and other information that the parties intend to submit at the arbitration hearing and the identification of witnesses that the parties intend to call at the arbitration hearing, there shall be no discovery unless ordered by the arbitrator upon a showing of need.

12. Jurisdiction; Venue; Governing Law

Subject to Section 11 above, this Agreement shall be governed by and construed in accordance with the laws of the State of California (irrespective of its choice of law principles). The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in federal or state court in Los Angeles County, California. 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.

13. Severability

The failure of either party to this Agreement to object to or to take affirmative action with respect to any conduct of the other which is in violation of the terms of this Agreement shall not be construed as a waiver of that conduct or any future breach or subsequent wrongful conduct. If any part, term or provision of this Agreement is declared and determined by any court or arbitrator to be illegal or invalid, such declaration and determination shall not effect the validity of the remaining parts, terms or provisions. The various headings in this Agreement are inserted for convenience only and shall not affect this Agreement or any portion thereof. This Agreement may be executed in two or more counter-parts or by fax, each of which shall be deemed an original, all of which together shall constitute one and the same instrument. All representations, covenants and warranties shall survive the execution of this Agreement, and sections 1, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 shall survive termination of this Agreement.

14. Agreement

By electronically accepting or by proceeding with the use of PaidYET, you acknowledge that you have received the Agreement, either by receiving a physical copy or by viewing the Agreement at https://paidyet.com/partner-terms. You have read the Agreement and understand it. You understand and agree that by viewing the Agreement online, you have acknowledged delivery of the full Agreement with the same force and effect as if you had received a physical copy of the Agreement. You understand that it is you responsibility to retain a current, complete copy of the Agreement either by retaining the physical copy or by printing it out or electronically storing the electronic version which is located at https://paidyet.com/partner-terms.

Introduction

PAIDYET GATEWAY AGREEMENT — UNITED STATES

Welcome to PaidYET.
This PAIDYET Gateway Agreement (“Agreement”) is made effective as of the date set forth below by and between PAYMINTZ, INC., D/B/A PAIDYET (“PAIDYET”) whose principal place of business is 525 S. Douglas St, #230, El Segundo, CA 90245 and the entity and/or individual who enters into this Agreement in any form (“Merchant”). This Agreement sets out the terms and conditions under which Merchant may utilize the PAIDYET Gateway as defined below.

By clicking on the “I AGREE” button or by continuing to use the PAIDYET Gateway, it becomes a legally binding contract. Merchant acknowledges and agrees that: (i) it has reviewed and understands the Agreement; (ii) it agrees to be legally bound by the terms and conditions of the Agreement; and (iii) its use of the PAIDYET Gateway and any related products or services will be governed by this Agreement. If Merchant does not agree or is not willing to be bound by the terms and conditions of this Agreement, Merchant should not click on the “I AGREE” button and should not seek to obtain or use the PAIDYET Gateway.

Recitals

WHEREAS, PAIDYET provides a secure, high performance SaaS platform along with a broad range of transaction processing, security and reporting products and services and related goods and services (the “PAIDYET Gateway”); and
WHEREAS, PAIDYET wishes to provide PAIDYET Gateway to Merchant so that Merchant may utilize PAIDYET Gateway.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Services Provided by PaidYET

1.01. Services. PAIDYET will provide the portions of the PAIDYET Gateway as set forth in accordance with the terms and conditions of this Agreement. PAIDYET and Merchant shall agree upon the services to initially be provided under this Agreement and may update, amend and change the goods and services provided to the Merchant.

1.02. Limited License. PAIDYET hereby grants to Merchant a perpetual, revocable (but only as provided herein), worldwide, nonexclusive, non-sublicensable, and non-transferable license, under intellectual property rights owned or licensed by PAIDYET, to use PAIDYET Gateway provided however that:

• (a) such license is subject to all obligations and restrictions imposed on Merchant in this Agreement;
• (b) such license extends only to Merchant’s employees and contractors, but only to the extent that such employees and contractors use PAIDYET Gateway for the sole purpose of collecting payments on the behalf of Merchant, and for no other purpose whatsoever;
• (c) such license extends only to Merchant use of PAIDYET Gateway solely to perform the functions specified herein, and in compliance therewith, and
• (d) while exercising such license, Merchant shall treat PAIDYET Gateway as PAIDYET’s Confidential Information under this Agreement.

1.03. Limitations on Rights Granted. Except as expressly provided to the contrary in this Agreement, Merchant shall not, and shall not knowingly cause or permit any non-party, to use or reproduce PAIDYET Gateway. Merchant shall not, and shall not knowingly cause or permit any non-party, to disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share PAIDYET Gateway, or otherwise apply any procedure or process to PAIDYET Gateway in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for PAIDYET Gateway or any algorithm, process, procedure or other information contained in PAIDYET Gateway. Except as expressly authorized herein, Merchant may not rent, lease, assign, sublicense, transfer, modify, alter, or time share the PAIDYET Gateway.

1.04. Independent Contractors. The relationship of PAIDYET and Merchant is that of independent contractors. Neither Merchant nor its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of PAIDYET, nor do they have any authority to bind PAIDYET by contract or otherwise to any obligation. They will not represent to the contrary, either expressly, implicitly, by appearance or otherwise.

1.05. Compliance With Laws. Merchant will comply with the rules and regulations of Visa, MasterCard, Discover, American Express and all other such associations and all applicable international, national, state, regional and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the PAIDYET Gateway. Merchant agrees to comply with any Automated Clearing House rules applicable to automatic and electronic transfer of funds including without limitation, laws, regulations, and rules governing correct authorizations by consumers and businesses, disclosures and notices required in connection with electronic funds transfer, and all necessary waivers and releases. Merchant has the sole responsibility to verify PAIDYET’s list of merchant card processors to be used under terms of this Agreement to determine if PAIDYET can properly transmit the necessary credit card information to Merchant’s credit card processor. Merchant acknowledges that PAIDYET’s list can be modified from time to time and must be verified by Merchant prior to being set up with PAIDYET. Merchant has the sole responsibility for obtaining the proper authorization from Merchant’s own credit card processor and/or settlement bank to be able to use Merchant’s merchant account for key entry transactions and transactions being processed over the internet or online. Merchant shall be solely responsible for and shall reimburse PAIDYET for all merchant losses, chargebacks, fines, credits, returns, disputes and all costs associated with data transmissions and transactions, including, but not limited to, any fraudulent transactions processed and all associated fees and costs (collectively “Merchant Losses”). This liability of Merchant to PAIDYET includes reimbursing PAIDYET for any Merchant Losses that PAIDYET has contractually agreed to pay with any of PAIDYET’s vendors. PAIDYET may take any Merchant Losses from Merchant’s bank account, credit card or by any other means. Merchant will be solely responsible to obtain accurate credit card and ACH information and authorization from its customers, and will transmit said information to PAIDYET via the internet or service originally agreed upon by all parties.

2. The PaidYET Gateway

2.01. Providing PAIDYET Gateway. During the term of this Agreement, PAIDYET shall provide the PAIDYET Gateway and use its commercially reasonable efforts to provide the PAIDYET Gateway and maintain it in an uninterrupted and error-free fashion consistent with its practices in effect as of the date of this Agreement. However, the parties acknowledge that the PAIDYET Gateway is computer network based services which may be subject to outages and delay occurrences. In such an event, PAIDYET shall use its commercially reasonable efforts to diligently and promptly remedy any and all material interruptions. PAIDYET will not be liable in any manner for any interruptions, outages, or other delay occurrences relating to the PAIDYET Gateway including any attributed to PAIDYET’s vendors.

3. Payment of Fees

3.01. Fees in General. If PAIDYET is the party collecting fees from the Merchant, Merchant shall pay fees to PAIDYET as set forth herein, in the application for the PAIDYET Gateway, as set forth in the Fee Schedule, as set forth on PAIDYET’s website and as disclosed to Merchant in any other documents or materials by PAIDYET.

3.02. Fees for PAIDYET Gateway. If PAIDYET is the party collecting fees from the Merchant, Merchant agrees to pay PAIDYET for the PAIDYET Gateway via deduction of all applicable fees directly from Merchant’s bank account. Merchant shall provide PAIDYET with all necessary bank account, routing and related information. PAIDYET will deduct automatically all such fees and charges on or about the first business day of each month for the preceding month’s services. Interest shall accrue at the lesser of 1.0% per month or the maximum amount permitted by applicable law (“Late Fee”) for any fees that remain unpaid beyond any due dates. In the event of a dispute made in good faith as to the amount of fees, Merchant agrees to remit payment on any undisputed amount(s); and, the Late Fee shall not accrue as to any disputed amounts unless not paid within thirty (30) calendar days after said dispute has been resolved by both parties. Merchant shall have sixty (60) days from the payment by Merchant of any fees due under this Agreement to notify PAIDYET of any errors in payment of fee by Merchant. If Merchant does not notify PAIDYET within the sixty (60) day time period, Merchant shall be deemed to have accepted without question such fee payment and may not in the future contest the amount Merchant paid or seek reimbursement for any discrepancies. Upon receipt of notice, PAIDYET shall have thirty (30) days to correct any errors

4. Term and Termination

4.01. Term. The initial term of this Agreement shall continue on until terminated as set forth herein. Notwithstanding any other provisions in this Agreement, either party may terminate this Agreement, without cause, by providing the other party with thirty (30) days written notice. Notwithstanding any other provisions in this Agreement, PAIDYET may cease providing the PAIDYET Gateway at any time in the event that (i) there is a data security breach or other event that involves a high level of potential exposure or damages to PAIDYET due to breach of this Agreement by Merchant that PAIDYET believes in its reasonable judgment to require this Agreement to be suspended or terminated immediately or (ii) the card associations, sponsoring bank or other third party orders PAIDYET to cease providing the goods and services offered under this Agreement. Merchant shall have the right to cure in the event that PAIDYET ceases to provide the PAIDYET Gateway and if such cure is made the PAIDYET Gateway may again be provided pursuant to the terms of this Agreement.

4.02. Default. Either party shall have the right to terminate this Agreement at any time if:

• (a) the other party breaches any of the provisions of this Agreement and fails to cure such breach within ten (10) days of its receipt of written notice thereof from the non-breaching party; or
• (b) the other party (i) fails to pay its debts or perform its obligations in the ordinary course of business as they mature; (ii) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or assignment or composition for the benefit of creditors.

4.03 Effect of Termination. Upon termination of this Agreement: (a) Merchant’s license to use the PAIDYET Gateway shall be automatically and immediately revoked, (b) Merchant shall immediately stop using such PAIDYET Gateway and shall either destroy or deliver to PAIDYET any originals and copies of the PAIDYET Gateway in Merchant’s possession, custody or control or in the control of any entity or individual to which Merchant has provided the PAIDYET Gateway, (c) Merchant shall provide to PAIDYET a written certification of such destruction or delivery, signed by an authorized agent of Merchant, and (d) Merchant shall promptly pay to PAIDYET all fees and charges accrued and unpaid through the effective date of the termination. Upon any termination of this Agreement, PAIDYET shall not be required to provide Merchant with any available credit or debit card information or other information relating to Merchant’s customers.

5. Obligations

5.01. Confidential Information. The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the PAIDYET Gateway and the know‑how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure.

5.02. Indemnification. Merchant agrees to indemnify, defend, and hold harmless PAIDYET, its employees or agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by Merchant or any employee, agent or affiliate of Merchant to comply with the terms of this Agreement; (ii) any warranty or representation made by Merchant being false or misleading; (iii) negligence of Merchant or its subcontractors, agents or employees, (iv) any representation or warranty made by Merchant or any employee or agent of Merchant to any third person other than as specifically authorized by this Agreement or (v) any alleged or actual violations by Merchant or its subcontractors, employees or agents of any card association rules, governmental laws, regulations or rules.

5.03. Disclaimer of All Warranties. THE PAIDYET GATEWAY IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. PAIDYET DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PAIDYET OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF PAIDYET’s OBLIGATIONS.

5.04. Limitation of liability. PAIDYET SHALL NOT BE LIABLE TO MERCHANT OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PAIDYET GATEWAY, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF PAIDYET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL PAIDYET’s TOTAL LIABILITY TO MERCHANT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY MERCHANT UNDER THIS AGREEMENT IN THE PRIOR SIX (6) MONTHS REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.

5.05. Taxes. Merchant shall pay, indemnify and hold PAIDYET harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on PAIDYET’s income, and (ii) all government permit fees, customs fees and similar fees which PAIDYET may incur with respect to this Agreement. Such taxes, fees and duties paid by Merchant shall not be considered a part of, a deduction from, or an offset against, payments due to PAIDYET hereunder.

5.06. Merchant represents and warrants to PAIDYET as follows:

• (a) Merchant has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against Merchant in accordance with its terms and no provision requiring Merchant’s performance is in conflict with its obligations under any charter or any other agreement (of whatever form or subject) to which Merchant is a party or by which it is bound.
• (b) Merchant is duly organized, authorized and in good standing under the laws of the state of its organization and is duly authorized to do business in all other states in which Merchant’s business make such authorization necessary or required.

5.07. Trademarks. Subject to the limitations in this Agreement, PAIDYET grants Merchant the nonexclusive right and license to use PAIDYET’s trademarks (the “Trademarks”) during the term of this Agreement solely in conjunction with the use of the PAIDYET Gateway. PAIDYET grants no rights in the Trademarks or in any other trademark, trade name, service mark, business name or goodwill of PAIDYET except as licensed hereunder or by separate written agreement of the parties. Merchant agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to PAIDYET (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). During the term of this Agreement, Merchant agrees not to use any trademark, trade name or product name confusingly similar to a trademark, trade name or product name of PAIDYET, except for the Trademarks expressly licensed hereunder. Upon expiration or termination of this Agreement, Merchant will immediately cease all display, advertising and use of all of the Trademarks and will not thereafter use, advertise or display any trademark, trade name or product designation which is, or any part of which is, similar to or confusing with any Trademark or with any trademark, trade name or product designation associated with PAIDYET or any of PAIDYET’s products and services.

5.08. Intellectual Property. “Intellectual Property” means all of the following owned by a party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.” Other than the express licenses granted by this Agreement, PAIDYET grants no right or license to Merchant by implication, estoppel or otherwise to the PAIDYET Gateway or any Intellectual Property Rights of PAIDYET. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of PAIDYET, in the PAIDYET Gateway) and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. PAIDYET (and not Merchant) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for the PAIDYET Gateway and any Intellectual Property Rights incorporated therein. Merchant will cooperate with PAIDYET in pursuing such protection, including without limitation executing and delivering to PAIDYET such instruments as may be required to register or perfect PAIDYET’s interests in any Intellectual Property Rights and any assignments thereof. Merchant shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from PAIDYET in connection with this Agreement.

5.09. Data Security Compliance. Merchant agrees to comply with privacy and security requirements under the Payment Card Industry Data Security Standard (“Association Requirements”) with regards to Merchant’s use, access, and storage of certain credit card non-public personal information (“Cardholder Information”) on behalf of PAIDYET. Visa, MasterCard, Discover, American Express, any ATM or Debit Networks, and the other financial service card organizations shall be collectively known herein as “Associations.” Merchant shall comply with its obligations under any applicable law or regulations as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of Cardholder Information. Merchant agrees that it shall protect the privacy of Cardholder Information to at least the same extent that PAIDYET must maintain that confidentiality under the Association Requirements or applicable law. Merchant agrees to ensure that any agent, including a subcontractor, to whom it provides Cardholder Information received from, or created or received by Merchant on behalf of PAIDYET, agrees to the same restrictions and conditions that apply through this Agreement to Merchant with respect to such information. Upon five (5) business days notice or immediately upon any unauthorized access to, use or disclosure of any Cardholder Information, PAIDYET may at its discretion, conduct an on-site audit and review of Merchant’s procedures and systems.

5.10. Data Accuracy. Merchant shall provide PAIDYET with data necessary for the electronic funds transfer (‘collection data”) in the form and at the times prescribed by PAIDYET and shall make periodic checks and updates necessary to cause the collection data to be current and accurate at all times. The format and schedule requirements for delivery of collection data by Merchant may be changed by PAIDYET during the term of this Agreement, and Merchant shall deliver collection data in conformity with changed requirements set forth from time to time by PAIDYET. Merchant warrants to PAIDYET that all data and entries delivered to PAIDYET by Merchant will (a) be correct in form, (b) contain true and accurate information, (c) be fully authorized by the consumer or business, and (d) be timely under the terms and provisions of this Agreement.

5.11. Merchant Account Services. In the event Merchant applies for and is approved for merchant account services, Merchant’s use of such services shall be governed by the terms of the applicable merchant account services agreement. Merchant account services are not covered by this Agreement.

5.12. Compliance with Export Controls. Merchant understands and acknowledges that PAIDYET is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries, entities, and individuals. Any and all obligations of PAIDYET to provide any products or services hereunder shall be subject in all respects to such United States laws and regulations as shall from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations (“EAR”) issued by the Department of Commerce, International Trade Administration, Bureau of Export Administration (“BXA”). Merchant agrees not to export or re-export any PAIDYET Intellectual Property in violation of any such restrictions, laws or regulations. Unless all required permits and/or approvals have been obtained, Merchant shall not cause, approve or otherwise facilitate others such as agents, subsequent purchasers, customers or any other third parties to export or re-export any PAIDYET Intellectual Property. Merchant agrees not to distribute or supply PAIDYET Intellectual Property to any person or entity if Merchant believes that such person intends to re-export or otherwise to take the PAIDYET Intellectual Property or to use the PAIDYET Intellectual Property outside of the United States without having all required permits and approvals. The PAIDYET Intellectual Property and the underlying information or technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country to which the U.S. has embargoed goods; or, (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders.

6. General Provisions

6.01. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.

6.02. Drafting. No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the parties and therefore any ambiguity or uncertainty shall be interpreted accordingly.

6.03 Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver 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.

6.04. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Merchant may not assign this Agreement without the written consent of PAIDYET. PAIDYET may assign this Agreement in its sole discretion without the written consent of Merchant.

6.05. Amendments. This Agreement may be amended by PAIDYET by posting a new version of this Agreement within the control panel or any place that Merchant has access to in order to view the revised Agreement. Any new version of this Agreement will immediately replace in its entirety this Agreement.

6.06. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and given by personal delivery, telecopy (confirmed by a mailed copy), or first class mail, postage prepaid, sent to the addresses set forth herein.

6.07. Section Headings: The section headings contained in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement.

6.08. Entire Agreement; Binding Effect. This Agreement, including the application form, all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.

6.09. Governing Law; Waiver of Jury Trial; Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of California without reference to conflict of law provisions. Any action, proceeding, arbitration or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in the federal judicial district that includes State of California. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. Any claim, dispute or controversy (“Claim”) by either Merchants or PAIDYET against the other, or against the employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents or assigns of the other, arising from or relating in any way to this Agreement or to our relationship, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association, under its Commercial Arbitration Rules in effect at the time the Claim is filed, except as otherwise provided below. All Claims are subject to arbitration, no matter what theory they are based on or what remedy they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law. Claims and remedies sought as part of a class action, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between Merchant and PAIDYET. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the American Arbitration Association in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes State of California. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any Claims, defenses or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or other property interests for contractual debts now or hereafter owed by either party to the other. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, MERCHANT AND PAIDYET MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY, AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION.

6.10. Jurisdiction; Venue; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California (irrespective of its choice of law principles). The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in federal or state court in State of California. 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.

6.11. Attorney’s Fees. Should suit 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.

6.12. Brand Reference. PAIDYET hereby grants to Merchant a nonexclusive, nontransferable right during the term of this Agreement to use PAIDYET’s name and logo to identify PAIDYET as the provider of payment processing services to Merchant on the web site containing Merchant’s payment form. Merchant hereby grants to PAIDYET a nonexclusive, non-transferable right during the term of this Agreement to use Merchant’s name and logo to identify Merchant as a customer of PAIDYET’s payment processing services on the PAIDYET web site and in PAIDYET’s collateral marketing materials. Each party’s use of the other party’s name, logo, or other marks shall be subject to such other party’s prior permission, which will not be unreasonably withheld or delayed, and any logo usage guidelines as such other party may provide from time to time. Each party may inspect any materials that contain any of such party’s name, logo, or other marks and upon request of such party, the other party shall immediately remove and cease all further use of all such materials that are unacceptable to the licensing party (in the licensing party’s reasonable discretion) or modify all such materials to become acceptable to the licensing party. All goodwill generated from a party’s use of the other party’s name, logo, or other marks shall inure to the benefit of such other party.

6.13. Survival. All representations, covenants and warranties shall survive the execution of this Agreement, and sections 1.05, 3.01, 3.02, 4.03, 4.04, 5.01, 5.02, 5.03, 5.04, 5.05, 5.06, 5.07, 5.08, 5.09, 5.10, 5.11, 5.12, 6.01, 6.02, 6.03, 6.04, 6.05, 6.06, 6.07, 6.08, 6.09, 6.10, 6.11. 6.12 and 6.13 shall survive termination of this Agreement.

Introduction

Welcome to the Terms of Service for the PaidYET Referral website. This is an agreement (“Agreement”) between, PAYMINTZ, INC., d/b/a PaidYET (“PaidYET”), the owner and operator of paidyet.com and you (Partner), a user of our website or our services. By clicking agree or by accessing our website or using any of the Referral Services, you agree to be bound by this Agreement and the Privacy Policy.ill mean that you accept those changes.

Throughout this Agreement:

“Referral ,” “us,” “we,” and “our,” refer to our company, PAYMINTZ, INC., d/b/a PaidYET and our Site, Software, or any Services, as is appropriate in the context of the use of the words. “Content” shall refer to any content submitted or transmitted by users of the Site and Service, including but not limited to personal data, payment transaction data, bank accounts, credit card accounts, text, photos, pictures, comments, designs, data, or videos. “Referral Partners” shall refer to any users who participate in our referral and affiliate marketing programs. “Site” shall refer to all related domains and links on paidyet.com. “Service” shall refer to the Referral Services including but not limited to referral marketing, affiliate marketing, and client services. “Software” shall refer to any software offered by Referral through the Site or Service. If you do not agree to the Terms of Service or the Privacy Policy please cease using our Software, Site and Service immediately. Partners of our Service must be 18 or above. If you are under the age of 18 please stop using our Site and Service immediately.

Referral Description of Service

Referral is an online platform that manages and tracks referrals for merchant signups. Referral Partners earn commissions based on active merchants they have referred.

User Accounts

In order to use our Site and Service you will be required to register. During registration we may collect information as described by our Privacy Policy. You agree to submit accurate and truthful information when registering. We have the final discretion in granting accounts and reserve the right to reject users without explanation.

Modification of Service and Software

We reserve the right to alter, update, or remove our Service and Software at any time. We may conduct such modifications to our Service or Software for security reasons, intellectual property or other legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications. For example, we may provide updates to fix security flaws, or respond to legal demands. Please note that this is a non-binding illustration of how we might exercise our rights under this section, and nothing in this section obligates us to take measures to update the Service or Software for security, legal or other purposes.

Our License Grant to You

We make our Service available to you through our Site including our referral management portal. When you use our Service, we grant you a, personal, non-exclusive, revocable, limited license to use our Service, access our Site and referral services. You acknowledge that we maintain all right, title, and interest in our Software and Services. This means you may not reverse engineer, scrape, decompile, modify or otherwise attempt to copy our Service. This license may be terminated if you violate any provisions listed in this Agreement or our Privacy Policy. Additionally, this license may be terminated if you are engaged in any activities that may damage the rights of Referral or if your activities are in violation of any applicable laws. If you wish to terminate this license please simply stop using our Service or notify us.

Use of Referral

When using our Service, you are responsible for your use of Referral , and for any use of Referral made using your account. You agree not to access, copy, or otherwise use Referral , including our intellectual property and trademarks, except as authorized by these Terms of Service or as otherwise authorized in writing by Referral . You agree not to use Referral to: You will not copy, distribute or disclose any part of the Site or the Service in any medium, including without limitation by any automated or non-automated “scraping”; You will not use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Site or the Service in a manner that sends more request messages to Referral servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Referral grants the operators of public search engines revocable permission to use spiders to copy materials from the publicly available searchable indices of the materials, not caches or archives of such materials); You will not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Site, Software, or Service; You will not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure; You will not upload invalid data, viruses, worms or other software agents through the Service or Software; You will not collect or harvest any personally identifiable information, including account names, from the Service or Software; You will not access the Site or Service through any technology or means other than those provided or authorized by the Service or Software; You agree not to stalk, harass, bully or harm another individual who uses our Site or Service; You agree not to impersonate any person or entity or misrepresent your affiliation with a person or entity; You agree to use our Software only in a safe manner and in compliance with all laws; You agree that you will not hold Referral responsible for your use of our Site or Software; You agree not to violate any requirements, procedures, policies or regulations of networks connected to Referral ; You agree not to interfere with or disrupt the Site, Software, or Service; You agree not to hack, spam or phish us or other users; You agree to provide truthful and accurate Content; You agree to not violate any law or regulation and you are responsible for such violations; You will not use our Site or Software to post any false, misleading, unlawful, defamatory, obscene, invasive, threatening, harassing, inflammatory, fraudulent Content; You agree not to cause, or aid in, the destruction, manipulation, removal, disabling, or impairment of any portion of our Site, including the de-indexing or de-caching of any portion of our Site from a thirty party’s website, such as by requesting its removal from a search engine; You will not upload any Content to our Site or Software that includes any third party intellectual property unless you have permission from the owner to use it in the specific manner that you used it; If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Service may at our discretion be terminated or suspended. Generally, we will provide an explanation for any suspension or termination of your use of any of our Services, but Referral reserves the right to suspend or terminate any account at any time without notice or explanation.

Software and Site Availability

We do not guarantee that the Software or Site will always be available, work, or be accessible at any particular time. Only users who are eligible to use our Software may do so. We reserve the right to terminate access for anyone. We cannot guarantee that the Software will work as advertised, or that it will give you the desired results.

Taxes

You agree that you are responsible for all taxes and fees associated with your use of the Referral Site or any PaidYET services.

Compliance With All Laws and Regulations

You agree that you are responsible for all taxes and fees associated with your use of the Referral Site or any PaidYET services.

Representations and Warranties

OUR SITE OR SERVICE ARE OFFERED “AS-IS”, INCLUDING ANY ERRORS, BUGS OR OTHER TECHNICAL ISSUES. YOU AGREE THAT WHILE USING OUR SOFTWARE OR SERVICE, YOUR RESULTS MAY VARY AND YOU MAY NOT ACHIEVE ANY DESIRED RESULTS. WE EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED. OUR SITE, SOFTWARE, OR SERVICE MAY NOT BE FIT FOR A PARTICULAR PURPOSE AND MAY NOT WORK OR BE APPLICABLE WHERE YOU RESIDE. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE REASONABLE SKILL AND CARE INVESTED IN OUR SERVICE, SATISFACTORY QUALITY OF OUR SERVICE, MERCHANTABILITY OF OUR SERVICE OR THAT OUR SERVICE IS NON- INFRINGING. FURTHERMORE, WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR SERVICE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, THAT THE SITE OR SERVICE WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION, THAT ANY DEFECTS OR ERRORS IN THE SITE OR SERVICE WILL BE CORRECTED, OR THAT THE SITE OR SERVICE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. REFERRAL IS NOT OBLIGATED TO PROVIDE YOU ACCESS TO OUR SITE AND SERVICE. IN THE EVENT OF ANY PROBLEM WITH THE SITE OR SERVICE, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SITE OR SERVICE.

Limitation of Liability

IN NO EVENT SHALL PAYMINTZ, INC. ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM (I) YOUR USE OR INABILITY TO USE THE SOFTWARE, SOFTWARE, WEBSITE OR OUR SERVICES ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SITE OR SERVICE, (III) ANY INTERRUPTION,MISINFORMATION, INCOMPLETE INFORMATION, OR CESSATION OF TRANSMISSION TO OR FROM OUR SOFTWARE TO YOU, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SITE BY ANY THIRD PARTY, (V) ANY FAILURE OF ANY THIRD PARTY INFORMATION LISTED ON OUR SITE AND SERVICE, INCLUDING ANY FAILURES OR DISRUPTIONS WHETHER INTENTIONAL OR UNINTENTIONAL OR (VI) ANY ERRORS OR OMISSIONS IN OUR SITE OR SERVICE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF OUR SITE OR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future. IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE. YOUR ABILITY TO USE OUR SOFTWARE AND SERVICE IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. INDEMNITY

Forum of Dispute

You agree that any dispute arising from or relating to this Agreement will be heard solely by a court of competent jurisdiction in or nearest to Los Angeles County, CA. If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so. You agree that the unsuccessful party in any dispute arising from or relating to this Agreement will be responsible for the reimbursement of the successful party’s reasonable attorneys’ fees, court costs, and disbursements.

Force Majeure

You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.

Severability

In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it. If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Referral shall have the sole right to elect which provision remains in force.

Non-Waiver

We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.

Termination of Service

We may terminate or suspend your account, or our Service and Software any reason without notice, though we will strive to provide a timely explanation in most cases. Please be aware that if we terminate service, you may be entitled to final referral commissions. All provisions of this Agreement which by their nature shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

Assignment

You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.

Amendments

We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified, make an announcement on our homepage or we may email you.

Electronic Communications

The communications between you and Referral use electronic means, whether you visit the Software, Site, or Service or send Referral e-mails, or whether Referral posts notices on the Software, Site, or Service or communications with you via e-mail. For contractual purposes, you (1) consent to receive communications from Referral in an electronic form; (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Referral provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. [email protected] 650.549.4357.

Information We Collect

PaidYET’s customers, the customers of its affiliates, and the customers of other third-parties for which PaidYET may provide outsourced or subcontracted processing services, (“Merchants”) are businesses and other legal entities desiring to accept credit or debit cards or other payment methods, as payment for goods or services, and to utilize various related services that PaidYET provides.

How we collect information about you

When you visit the PidYET website or use the PaidYET Services, we collect your IP address and standard web log information, such as your browser type and the pages you accessed on our website.

If you open an account or use the PaidYET Services, we may collect the following types of information:

• Contact information – your name, address, phone, email, Skype ID and other similar information.
• Financial information – the full bank account numbers and/or credit card numbers that you link to your PaidYET account or give us when you use the PaidYET

Before permitting you to use the PaidYET Services, we may require you to provide additional information we can use to verify your identity or address or manage risk, such as your date of birth, social security number or other information. We may also obtain information about you from third parties such as credit bureaus and identity verification services. Third party authentication services or mobile number verification systems may be used to collect data for security, identity verification, authentication or other related purposes with the PaidYET payment services.

When you are using the PaidYET Services, we collect information about your transactions and your other activities on our website or using the PaidYET Services and we may collect information about your computer or other access device for fraud prevention purposes.

Finally, we may collect additional information from or about you in other ways such as contacts with our customer support team or results when you respond to a survey from interactions with merchants other companies.

How we use cookies

When you access our website, we, or companies we hire to track how our website is used, may place small data files called “cookies” on your computer. We and our service providers also use cookies to customize the PaidYET Services, content and advertising; measure promotional effectiveness, and promote trust and safety.

We send a “session cookie” to your computer when you log in to your account or otherwise use the PaidYET Services. This type of cookie helps us to recognize you if you visit multiple pages on our site during the same session, so that we don’t need to ask you for your password on each page. Once you log out or close your browser, this cookie expires and no longer has any effect. We also use longer-lasting cookies for other purposes such as to display your e-mail address on our sign-in form, so that you don’t need to retype the e-mail address each time you log in to your account.

We encode our cookies so that only we can interpret the information stored in them. You are free to decline our cookies if your browser permits, but doing so may interfere with your use of our website. We may also collect information about your computer or other access device to mitigate risk and for fraud prevention purposes.

You may encounter cookies from third parties when using the PaidYET Services on websites that we do not control (for example, if you view a web page created by a third party or use an application developed by a third party, there may be a cookie placed by that web page or application.)

How we protect and store personal information

Throughout this policy, we use the term “personal information” to describe information that can be associated with a specific person and can be used to identify that person. We do not consider personal information to include information that has been anonymized so that it does not identify a specific user.

We store and process your personal information on our computers in the US and elsewhere in the world where PaidYET facilities are located, and we protect it by maintaining physical, electronic and procedural safeguards in compliance with applicable US federal and state regulations. We use computer safeguards such as firewalls and data encryption, we enforce physical access controls to our buildings and files, and we authorize access to personal information only for those employees who require it to fulfill their job responsibilities.

Responsibility of Merchants

Merchants are also required to comply with various rules and regulations of the various credit and debit card organizations and networks relating to the security and safeguarding Cardholder Data, including, but not limited to, PCI, CISP and SDP. Merchants may be required to undergo periodic third-party data security assessments and periodic network scans to ensure that appropriate security measures are in place.

How we use the personal information we collect

Our primary purpose in collecting personal information is to provide you with a secure, smooth, efficient, and customized experience. We may use your personal information to:

• provide the PaidYET Services and customer support you request;
• process transactions and send notices about your transactions
• resolve disputes, collect fees, and troubleshoot problems;
• prevent potentially prohibited or illegal activities, and enforce our User Agreement;
• customize, measure, and improve the PaidYET Services and the content and layout of our website and applications;
• deliver targeted marketing, service update notices, and promotional offers based on your communication preferences;
• compare information for accuracy and verify it with third parties.

Marketing

We don’t sell or rent your personal information to third parties for their marketing purposes without your explicit consent. We may combine your information with information we collect from other companies and use it to improve and personalize the PaidYET Services, content and advertising. If you don’t wish to receive marketing communications from us or participate in our ad-customization programs, simply indicate your preference by logging into your account and going to the Account Setup under the Account Settings and adjusting your preferences, or by following the directions provided with the communication or advertisement.

How we share personal information with other PaidYET users

To process your payments, we may share some of your personal information with the person or company that you are paying or that is paying you. Your contact information, date of sign-up, the number of payments you have received from PaidYET, may be provided to other PaidYET users and merchants who you transact with through PaidYET. In addition, this and other information may also be shared with third parties when you use these third parties to access or with the PaidYET Services. If you are buying goods or services and pay through PaidYET, we may also provide the merchant with your confirmed credit card billing address to help complete your transaction with the seller. The seller is not allowed to use this information to market their services to you unless you have agreed to it. If an attempt to pay your seller fails, or is later invalidated, we may also provide your seller with details of the unsuccessful payment. To facilitate dispute resolutions, we may provide a buyer with the seller’s address so that goods can be returned to the seller.

We work with third parties, including merchants, to enable them to accept or facilitate payments from or to you using PaidYET. In doing so, a third party may share information about you with us, such as your email address or mobile phone number to inform you that a payment is sent to you or when you attempt to pay that merchant or through that third party. We use this information to confirm that you are a PaidYET customer and that PaidYET as a form of payment can be enabled, or where a payment is sent to you to send you notification that you have received a payment. Also, if you request that we validate your status as a PaidYET customer with a third party, we will do so. Please note that merchants you buy from and contract with have their own privacy policies, and PaidYET may not be held responsible for their operations, including, but not limited to, their information practices.

When you agree to make a payment using the PaidYET services, you agree to allow PaidYET authentication services to pre-populate a secure masked token of your account information, including card number and bank account numbers, in order to facilitate secure and encrypted processing of payments you initialize. Regardless, we will not disclose your credit card number or bank account number to anyone you have paid or who has paid you through PaidYET or with the third parties that offer or use the PaidYET Services, except with your express permission or if we are required to do so to comply with a credit card rules, subpoena or other legal process.

How we share personal information with other parties

We may share your personal information with:

• Members of the PaidYET or Paymintz corporate family — to provide joint content, products and services (like registration, transactions and customer support), to help detect and prevent potentially illegal acts and violations of our policies, and to guide decisions about their products, services and communications. Members of our corporate family will use this information to send you marketing communications only if you have requested their services.
• Service providers under contract who help with parts of our business operations such as fraud prevention, bill collection, marketing, and technology services. Our contracts dictate that these service providers only use your information in connection with the services they perform for us and not for their own benefit.
• Financial institutions that we partner with to jointly create and offer product or services, like to determine whether you should receive pre-approved offers. These financial institutions may only use this information to market PaidYET-related products, unless you have given consent for other uses.
• Credit bureaus to report account information, as permitted by law.
• Banking partners as required by credit card association rules for checking or inclusion on their list of terminated merchants (in the event that you meet their criteria which includes having PaidYET close your PaidYET Account due to your breach of the PaidYET User Agreement).
• Companies that we plan to merge with or be acquired by. (Should such a combination occur, we will require that the new combined entity follow this privacy policy with respect to your personal information. If your personal information could be used contrary to this policy, you will receive prior notice.)
• Law enforcement, government officials, or other third parties when
• we are compelled to do so by a subpoena, court order or similar legal procedure
• we need to do so to comply with law or credit card rules
• we believe in good faith that the disclosure of personal information is necessary to prevent physical harm or financial loss, to report suspected illegal activity, or to investigate violations of our User Agreement.
• Other third parties with your consent or direction to do so.

PaidYET will not sell or rent any of your personal information to third parties for their marketing purposes and only shares your personal information with third parties as described in this policy.

Modifications to Privacy Statement

We continue to review our policies and procedures to assure that they are effective in meeting our commitments to our Merchants. PaidYET reserves the right to change this Privacy Statement without notice at any time and from time to time, including as needed to comply with the rules and regulations of the various debit and credit card organizations, or to comply with applicable local, state and federal laws and regulations.

Inquiries

If you have a question or comment regarding this Privacy Statement or Safe Harbor Privacy please contact:

PaidYET
Legal Department
525 S. Douglas
El Segundo, CA 90245