AffiniPay Services Agreement

Effective Date: 29th August, 2022

This AffiniPay Services Agreement (this “Agreement”) is a legal agreement  between you (“Customer,” “you” or “your”) and AffiniPay, LLC (d/b/a LawPay, CPACharge, ClientPay, ClientCredit, and MedPay) (“AffiniPay,” “we,” “our” or “us”). As used in this Agreement, the “Service” and the “Services” refers to AffiniPay’s payment processing services, as well as our website, any software, programs, documentation, tools, hardware, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by AffiniPay, directly or indirectly. To use the Services, you must agree to all the terms of this Agreement.

This Agreement incorporates by reference all policies, notices, and other content that appear on our website at www.affinipay.com (collectively, the “Website”). You should specifically review the User Guide posted on our Website (the “User's Guide”), which is hereby incorporated by reference and is made a part of this Agreement. Capitalized terms used but not defined herein have the meanings set forth in Appendix A.

1. Your Relationship with AffiniPay and with Others

The Services allow you to receive payments by card and bank transfer from persons or entities (“Purchasers”) who wish to pay you for goods, services, deposits or other transactions authorized by Network Rules. Neither AffiniPay, nor any Bank, is a party to these transactions.

For payments by card, AffiniPay initiates the payment process by providing information, directly or indirectly, to the Networks. The Bank is obligated to pay you under both (a) the provisions of its agreement with AffiniPay, and (b) Network Rules that make the Bank responsible for settling with you as a merchant. For payments by bank transfer, AffiniPay initiates the Automated Clearing House (“ACH”) payment process by providing information to the Bank through the National Automated Clearing House Association (“NACHA”).

You acknowledge and agree that, from time to time, another person or entity may submit or modify transactions on your behalf, including, without limitation, owners, principals, employees, officers, accountants or other designated third parties. Such a person or entity is referred to herein as an “Account Administrator.” You agree that all actions of an Account Administrator will be deemed to be your actions under this Agreement, and you accept full responsibility and liability for any and all acts and/or omissions of an Account Administrator.

2. Limitations on AffiniPay’s and Others’ Responsibility

Use of our Services in no way represents any endorsement by AffiniPay or any Network, of any user's existence, legitimacy, ability, policies, practices, or beliefs. AffiniPay does not have control of, or liability for, goods or services that are paid for via the Services.

3. Our Fees

AffiniPay charges transaction processing fees to you for using the Services, as well as certain other fees, as set forth on the Pricing Addendum attached hereto as Appendix B, which is a part of this Agreement. These fees (the “Fees”) are debited from your bank account(s) or netted against other funds due to you, but you agree to pay the Fees regardless of whether there are funds due to you or there is sufficient money in your bank account for us to debit. Subject to the terms of this Agreement, Network Rules, and Law, we reserve the right to change our Fees at any time upon notice to you. By continuing to use the Services, you consent to the change in Fees. To withdraw your consent, you must close your Account.

4. E-Sign Disclosure and Consent
1. Consent to Electronic Disclosures and Notices. By registering for an AffiniPay account, you agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that we provide in connection with your AffiniPay Account and your use of the Services. You also agree that your electronic consent will have the same legal effect as a physical signature.
2. Methods of Delivery. You agree that AffiniPay can provide Communications regarding the Services to you through our Website, or by sending Communications to the email or physical addresses identified in your Account. Communications may include notifications about your Account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a Communication has the same legal effect as if we provided you with a physical copy. We will consider a Communication to have been received by you within 24 hours of the time a Communication is either posted to our Website or emailed to you.
3. Requirements for Delivery. You will need a computer or mobile device, Internet connectivity, and an updated browser to access the Website and review the Communications provided to you. If you are having problems viewing or accessing any Communications, please contact us and we can find another means of delivery.
4. Text Messages. You authorize us to provide Communications to you via text message to allow us to verify your or your representative’s authority to use the Services (such as through two-step verification), and to provide you with other time-sensitive notifications regarding the Services. Standard text or data charges may apply to such Communications. Where offered, you may disable text message notifications by following instructions provided in the message. However, by disabling text messaging, you may be disabling important security controls relating to the Services and may increase your risk of loss.
5. Compliance with Law; Prohibited Businesses and Activities. You must comply with all Laws and Network Rules in your use of the Services. You may not use the Services to enable any person (including you) to operate or otherwise benefit any activities AffiniPay has identified as a prohibited business or activity (collectively, “Prohibited Businesses”), as posted on our Website from time to time. Prohibited Businesses include use of the Services for personal, family or household purposes or in or for the benefit of a country, organization, entity, or person embargoed or blocked by the United States government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC). Please review the list of Prohibited Businesses thoroughly before registering for and opening an Account. If you are uncertain whether a category of business or activity is prohibited or have questions about how these restrictions apply to you, please contact us. We may add to or update the Prohibited Business List at any time. In addition, you may not allow, and may not allow others to: (a) access or attempt to access non-public AffiniPay systems or Sensitive Data; (b) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any Sensitive Data, content, or any part of the Services or our Website except as expressly permitted by this Agreement and Law; (c) act as master merchant, payment facilitator, service bureau or pass-through agent for the Services on behalf of any other person or entity; (d) transfer any rights granted to you under this Agreement; (e) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited; (f) reverse engineer or attempt to reverse engineer the Services except as expressly permitted by Law; (g) perform or attempt to perform any actions that would interfere with the normal operation of the Services or affect use of the Services by our other users; or (h) impose an unreasonable or disproportionately large load on the Services.
6. Your License

AffiniPay grants you a limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Services and API solely to for the purposes contemplated by this Agreement.

You may not, nor may you permit any third party to, do any of the following: (a) access or monitor any material or information on any AffiniPay system using any manual process or robot, spider, scraper, or other automated means; (b) alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from AffiniPay; (c) permit any third party to use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement; or (d) perform or attempt to perform any actions that would interfere with the proper working of otherwise use the Services except as expressly allowed under this Agreement.

7. Our Intellectual Property Rights

We reserve all rights not expressly granted to you in this Agreement. The Services are protected by copyright, trade secret and other intellectual property Laws. AffiniPay owns the title, copyright and other worldwide intellectual property rights in the Services and all copies of the Services. This Agreement does not grant you any rights to AffiniPay’s trademarks or service marks, nor may you remove, obscure, or alter any of AffiniPay’s trademarks or service marks included in the Services.

You may choose to, or we may invite you to, submit comments or ideas about the Services, including about how to improve the Services or our products (“Feedback”). By submitting Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place AffiniPay under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, AffiniPay does not waive any rights to use similar or related ideas previously known to AffiniPay, or developed by its employees, or obtained from sources other than you.

8. Privacy Policy

By accepting this Agreement, you acknowledge that you have read, understood and accepted our Privacy Policy.

9. Security
1. AffiniPay Security. AffiniPay represents and warrants that it is a certified PCI Level 1 service provider and will comply with the applicable provisions of the PCI-DSS, and AffiniPay will provide you with its PCI-DSS Attestation of Compliance upon request. You acknowledge and agree that User Data and Sensitive Data is transmitted with the understanding that any security measures we provide may not be appropriate or adequate for your specific business, and you agree to implement security controls that meet your specific requirements. 
2. Customer Security. You are solely responsible for the security of any Sensitive Data in your possession, or that you are otherwise authorized to access or handle. You will comply with applicable Security Standards when handling or maintaining Sensitive Data, and will provide evidence of your compliance to us upon our request. If you do not provide evidence of such compliance to our satisfaction, we may suspend your Account or terminate this Agreement. You will notify us within 24 hours if you have any reason to believe that there has been a security breach, leak, loss, or compromise of Sensitive Data on your systems or the systems of parties acting as your vendor (a “Data Incident”). In the event of any Data Incident (whether reported by you or otherwise), we may require you to permit a third-party auditor approved by us to conduct a security audit of your systems and facilities, and you must fully cooperate with any requests for information or assistance that the auditor makes to you as part of the security audit. The auditor will issue a report to us, which we may share with Networks and Banks. In our sole discretion, we may take any action, including suspension of your Account, to maintain the integrity and security of the Services, or to prevent harm to you, us, Banks, Networks, Purchasers, or other third parties. You waive any right to make a claim against us for losses you incur that may result from such actions we may take to prevent such harm.
3. Confidentiality. AffiniPay will only use User Data to perform the Services or as otherwise permitted by this Agreement, by other agreements between you and us, or as otherwise directed or authorized by you. You will protect all Sensitive Data you receive through the Services, and you may not disclose or distribute any such Sensitive Data, and you will only use such Sensitive Data in conjunction with the Services and as permitted by this Agreement or by other agreements between you and us. 

10. Registering for Use of Payment Processing Services

You must register with AffiniPay to use the Services. To register, you provide information, including email address and a self-selected password, in order to create an AffiniPay account (“Account”). You are responsible for maintaining the secrecy and security of your Account access credentials and for any use of or action taken under them. We also offer an application programming interface (the “API”) that allows you to retrieve information from, or submit requests to, AffiniPay. When you register for an Account, you may be asked for financial information, or information we use to identify you, your representatives, principals, officers, directors, managers, owners, beneficial owners, and other persons or entities associated with your Account. We may share information about your AffiniPay Account with Networks, Banks, and other service providers, or use such information on our own behalf, in order to verify your eligibility to use the Services, establish any necessary accounts or credit with Networks and Banks, monitor Charges and other activity, and conduct risk management and compliance reviews. We will review and may conduct further intermittent reviews of your Account information to determine that you are eligible to use the Services. You authorize us and our Affiliates to obtain from third parties financial and credit information relating to you in connection with our determination whether to accept this Agreement and our continuing evaluation of your financial and credit status.

11. Additional Terms

Your use of the Services may be subject to additional terms that apply between you and one or more of AffiniPay, an AffiniPay affiliate, and a Bank (the “Additional Terms”). The current Additional Terms are provided in Appendix C. By using the Services, you agree to the applicable Additional Terms, including those that separately bind you with processors, Networks and/or Banks. Additionally, a Bank or Network may enforce the terms of this Agreement directly against you. We may add or remove Banks and Networks at any time. The Additional Terms may also be amended from time to time. Your continuing use of the Services constitutes your consent and agreement to such additions, removals and amendments, and your use of any new Services constitutes your consent to any applicable Additional Terms relating to those Services.

12. Security Interest
1. Clearing Funds. All funds resulting from Charges are held in pooled clearing accounts (the “Clearing Accounts”) with our banking partners. We will settle funds to and from the Clearing Accounts in the manner described in this Agreement; however, you have no rights to the Clearing Accounts or to any funds held in the Clearing Accounts, you are not entitled to draw funds from the Clearing Accounts, and you will not receive interest from funds maintained in the Clearing Accounts.
2. Reserves. We may withhold funds by temporarily suspending or delaying payouts to you and/or designate an amount of funds that you must maintain in bank accounts associated with your Account or in a separate reserve account with a Bank (a “Reserve”) to secure the performance of your obligations to us. We may require a Reserve for any reason related to your use of the Services. The Reserve will be in an amount as reasonably determined by us to cover potential losses relating to your Account. We may raise, reduce or remove the Reserve at any time, in our sole discretion, based on your payment history, a credit review, or otherwise as we, Banks, or our processing partners may determine or require. We may fund the Reserve from any funding source associated with your Account, including any funds due to you, or available in your bank account.
3. Security Interests. You grant us a lien and security interest in all Reserves and funds for transactions that we process for you, including funds that we deposit into your Settlement Accounts, as well as funds held in any other bank accounts to which such transaction funds are deposited or transferred. This means that if you have not paid funds that you owe to us, your Purchasers, or to any of our affiliates, we have a right superior to the rights of any of your other creditors to seize or withhold funds owed to you for transactions that we process through the Services, and to debit or withdraw funds from any bank account associated with your Account (including your Settlement Accounts). Upon our request, you will execute and deliver any documents and pay any associated fees we consider necessary to create, perfect, and maintain a security interest in such funds (such as the filing of a form UCC-1). Notwithstanding the foregoing, AffiniPay does not, and will not, take any lien or security interest in any Trust Accounts in which you are prohibited by Law or ethical codes of conduct enforced by your state bar association (if applicable) from granting any security interest.
4. Collection and Set-Off Rights. You agree to pay all amounts owed to us on demand. Your failure to pay amounts owed to us under this Agreement is a breach and you will be liable for any costs we incur during collection in addition to the amount you owe. Collection costs may include, attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, any applicable interest, and any other related costs. Where possible, we will first attempt to collect or set-off amounts owed to us from balances in your Accounts from your use of the Services or from funds that we hold in Reserve. However, we may collect any amounts you owe us under this Agreement by deducting or setting-off amounts that you owe from the AffiniPay account balance (or debiting the Settlement Account for such AffiniPay account) for any AffiniPay account that we determine, acting reasonably, is associated with your Account. Similarly, we may deduct or set-off amounts from your Account balance (or debit your Settlement Accounts) in order to collect amounts owed to us in relation to such associated AffiniPay accounts. Notwithstanding the foregoing, we will not, in any event, debit a Trust Account.
5. Guarantees. We may require a personal or other guarantee (a “Guarantee”) from your principal, owner, or other guarantor, in the form attached hereto as Appendix D. A Guarantee consists of a legally binding promise by an individual or an entity to pay any amounts the user owes in the event that you are unable to pay. Unless we choose, in our sole discretion, to waive the Guarantee requirement, if you are unable to provide a Guarantee, then you will not be permitted to use the Services.
13. Termination
1. Termination by AffiniPay. We may terminate this Agreement and close your Account for any reason or no reason at any time upon notice to you. We may also suspend the Services and instruct the Bank to suspend access to your Account (including the funds in your Account) if you (i) have violated the terms of the AffiniPay’s policies or this Agreement, (ii) pose an unacceptable credit or fraud risk to us, or (iii) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.
2. Termination by Customer. You may terminate this Agreement by closing your Account at any time upon thirty days’ notice to us. When you close your Account, any pending transactions will be cancelled. Any funds that the Bank holding in custody for you at the time of closure, less any applicable Fees, will be paid out to you according to your payout schedule, assuming all payout-related authentication requirements have been fulfilled. If an investigation is pending at the time you close your Account, the Bank may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds in dispute, the Bank will release those funds to you.
3. Effect of Termination. If this Agreement is terminated or your Account is closed, you agree: (i) to continue to be bound by this Agreement (except as otherwise specifically provided in this Agreement); (ii) to immediately stop using the Services and to remove all card logos from your website and wherever else they are displayed; (iii) that the licenses provided under this Agreement are terminated; (iv) that we reserve the right (but have no obligation) to delete all of your information and Payment Data in our possession; and (v) that we will not be liable to you or any third party for termination of access to the Services, deletion of your information or Payment Data, or export of your information or Payment Data. We will not be liable to you for compensation, reimbursement, or damages in connection with any termination or suspension of the Services. Any termination of this Agreement does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement.
14. Indemnity

You will indemnify, defend and hold us and our banks, processors and partners harmless (and our and their respective employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a third party person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including any violation of our policies or the Network Rules; (b) your wrongful or improper use of the Services; (c) any Charge submitted by you through the Services (including the accuracy of any product information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) any Fees, Fines, Disputes, Refunds, Reversals, or any other liability we incur that results from your use of the Services; (e) your violation of any third-party right, including any right of privacy, publicity rights or intellectual property rights; (f) your violation of any Laws; (g) any other party's access and/or use of the Services with your unique username, password or other appropriate security code; or (h) all fraudulent transactions related to any Data Incident and all costs incurred by any indemnified party as a result of such Data Incident.

15. Representations and Warranties

By accepting the terms of this Agreement, you represent, warrant and agree that: (a) you are eligible to register and use the Services and have the authority to execute, and perform the obligations required by, this Agreement; (b) any information you provide us about your business, products, or services is accurate and complete; (c) any Charges represent a transaction for permitted products, services, or donations, and any related information accurately describes the transaction; (d) you will fulfill all of your obligations to your Purchasers and will use best efforts to resolve all Disputes with them; (e) you will comply with all Laws; (f) your employees, contractors and agents will at all times act consistently with the terms of this Agreement; (g) you will not use the Services for personal, family or household purposes, for peer-to-peer money transmission, or intercompany Transactions; and (h) you will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services.

16. Disclaimer of Warranties by AffiniPay

WE PROVIDE THE SERVICES AND API “AS IS” AND “AS AVAILABLE”, WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY OTHER TYPE OF WARRANTY OR GUARANTEE. NO DATA, DOCUMENTATION OR ANY OTHER INFORMATION PROVIDED BY AFFINIPAY OR OBTAINED BY YOU FROM OR THROUGH THE SERVICES (WHETHER ORAL OR WRITTEN) CREATES OR IMPLIES ANY WARRANTY FROM AFFINIPAY TO YOU.

AFFINIPAY DISCLAIMS ANY KNOWLEDGE OF, AND DOES NOT GUARANTEE: (A) THE ACCURACY, RELIABILITY, OR CORRECTNESS OF ANY DATA PROVIDED THROUGH THE SERVICES; (B) THAT THE SERVICES WILL MEET YOUR SPECIFIC BUSINESS NEEDS OR REQUIREMENTS; (C) THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; (D) THAT AFFINIPAY WILL CORRECT ANY DEFECTS OR ERRORS IN THE SERVICES, API, DOCUMENTATION, OR DATA; OR (E) THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL CODE. USE OF DATA YOU ACCESS OR DOWNLOAD THROUGH THE SERVICES IS DONE AT YOUR OWN RISK – YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM SUCH ACCESS OR DOWNLOAD. YOU UNDERSTAND THAT AFFINIPAY MAKES NO GUARANTEES TO YOU REGARDING TRANSACTION PROCESSING TIMES OR PAYOUT SCHEDULES.

NOTHING IN THIS AGREEMENT OPERATES TO EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY IMPLIED CONDITION, WARRANTY OR GUARANTEE, OR THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER LAW WHERE TO DO SO WOULD CONTRAVENE THAT LAW OR CAUSE ANY TERM OF THIS AGREEMENT TO BE VOID.

17. Limitation of Liabilities and Damages

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL AFFINIPAY, ITS PROCESSORS, SUPPLIERS, LICENSORS, NETWORKS, OR ANY BANK (OR THEIR RESPECTIVE AFFILIATES, AGENTS, OFFICERS, DIRECTORS AND EMPLOYEES) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF, THE SERVICES OR YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS. UNDER NO CIRCUMSTANCES WILL AFFINIPAY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, AFFINIPAY, ITS PROCESSORS, THE NETWORKS, AND ANY BANK (AND THEIR RESPECTIVE AFFILIATES, AGENTS, OFFICERS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF ACCESS TO THE SERVICES, OR ANY DELAY IN PERFORMING OUR OBLIGATIONS UNDER THIS AGREEMENT, REGARDLESS OF WHETHER THE FAILURE OR DELAY IS CAUSED BY AN EVENT OR CONDITION BEYOND OUR CONTROL; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (G) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT WILL AFFINIPAY, ITS PROCESSORS, AGENTS, SUPPLIERS, LICENSORS, NETWORKS, OR ANY BANK (OR THEIR RESPECTIVE AFFILIATES, AGENTS, OFFICERS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF AFFINIPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

18. Disputes; Arbitration

If a Dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact AffiniPay support with any Dispute. If we cannot resolve your concerns, we agree to an informal Dispute resolution process requiring individual arbitration.

You and AffiniPay agree to arbitrate all Disputes. Notwithstanding the foregoing, (a) AffiniPay may choose to pursue a claim in court, or may assign your account for collection, and the we or a collection agency may pursue in any court of competent jurisdiction any claim that is strictly limited to the collection of past due amounts and any interest or cost of collection permitted by Law or this Agreement, and (b) each party will have a right to seek injunctive or other equitable relief in a court of law.

ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON A INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST AFFINIPAY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) (“AAA”) according to this provision and the applicable arbitration rules. A form for initiating arbitration proceedings is available on the AAA's website at www.adr.org. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. Any arbitration hearing relating to this Agreement will occur in Austin, Texas. You or AffiniPay may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and AffiniPay subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you or by AffiniPay, unless the arbitrator requires otherwise. The arbitrator's award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules, but if you are unable to pay any of them, AffiniPay will pay them for you. In addition, AffiniPay will reimburse all such filing, administration, and arbitrator fees and costs for claims totaling less than $75,000 unless the arbitrator determines the claims are frivolous. Likewise, AffiniPay will not seek its attorneys' fees or costs in arbitration unless the arbitrator determines your claims or defenses are frivolous. In the event the arbitrator determines the claims you assert in the arbitration are frivolous, you agree to reimburse AffiniPay for all fees associated with the arbitration paid by AffiniPay on your behalf that you otherwise would be obligated to pay under the AAA's rules. For purposes of this arbitration provision, references to you and AffiniPay also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users of the Services. Subject to, and without waiver of, the arbitration provisions above, you agree that any judicial proceedings will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in Travis County, Texas, or federal court for the Western District of Texas located in Travis County, Texas. 

19. Governing Law

This Agreement and any Dispute will be governed by Texas law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within Texas, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction.

20. Limitation on Time to Initiate a Dispute.

Unless otherwise required by Law, you must commence any action or proceeding relating to any Dispute within one (1) year after the occurrence of the event giving rise to such Dispute.

21. Assignment

You may not assign this Agreement, any rights or licenses granted in this Agreement, or operation of your Account to others without our prior written consent, which may be granted or withheld at our sole discretion. If you wish to make such an assignment, please contact us. If we consent to the assignment, the assignee must agree to assume all of your rights and obligations owed by you related to the assignment, and must agree to comply with the terms of this Agreement. AffiniPay may assign this Agreement without your consent or any other restriction. 

22. No Agency; Third Party Services

Except as expressly stated in this Agreement, nothing in this Agreement serves to establish a partnership, joint venture, or other agency relationship between you and us, or with any Network. Each party to this Agreement, and each Network, is an independent contractor. Neither you nor we have the ability to bind a third party to any contract or obligation, and neither party will represent that you or we have such an ability.

We may reference or provide access to third-party services, products, and promotions that use, integrate, or provide ancillary services to the Services (“Third-Party Services”). These Third-Party Services are provided for your convenience only and do not constitute our approval, endorsement, or recommendation of any such Third-Party Services for you. You access and use any Third-Party Services based on your own evaluation and at your own risk. You understand that your use of any Third-Party Services is not governed by this Agreement. If you decide to use any Third-Party Services, you will be responsible for reviewing, understanding and accepting the terms and conditions associated with such use. We expressly disclaim all responsibility and liability for your use of any Third-Party Services. Please also remember that when you use a Third-Party Services, our Privacy Policy is no longer in effect. Your use of a Third-Party Services, including those that have a link on our Website, is subject to that Third-Party Service’s own terms of use and privacy policies.

You may automatically be enrolled in the “AffiniPay Network,” a group of merchants, billers, banks, insurance companies, accounts payable vendors, financing providers, and other payors. The AffiniPay Network allows Purchasers to automate and accelerate payments to you using the AffiniPay Services, rather than relying on paper checks. In order to allow payments via the AffiniPay Network, AffiniPay may share your payment address and other relevant business information with other AffiniPay Network members. Notwithstanding the foregoing, AffiniPay may prohibit, or otherwise limit, participation in, the AffiniPay Network for any reason or no reason. If you wish to opt-out of participation in the AffiniPay Network, please contact us. Payments from Purchasers to you through the AffiniPay Network may be made via virtual card, e-check, or other method, and will be processed using the AffiniPay Services in accordance with the terms and conditions of this Agreement. You acknowledge and agree that payments made through the AffiniPay Network will be subject to the same Fees (including processing fees and transaction fees) as other payments of the same type (card or e-check, for example), as set forth in Appendix B, and you agree to pay such Fees in accordance with Section 3, even if such payments could have been made via another method (paper check, for example).

23. Amendment

This Agreement and the Privacy Policy may be amended by AffiniPay upon notice to you. Notwithstanding the foregoing, in the event the terms of this Agreement or the Privacy Policy must be amended pursuant to a change required by the Network Rules or to comply with Law, such amendment may be effective sooner. AffiniPay may change, delete, discontinue, or impose conditions on use of the Services by posting such changes on the Website, via mail or email, or through other means pursuant to which we deliver you Communications. Your use of the Services or API after we publish any such changes on our Website or otherwise communicate such changes to you, constitutes your acceptance of the terms of the modified Agreement. You can access a copy of the current terms of this Agreement on our Website at any time.

24. Other Provisions

This Agreement and all policies and procedures that are incorporated by reference constitute the entire agreement between you and AffiniPay for provision and use of the Services. Except where expressly stated otherwise in a writing executed between you and AffiniPay, this Agreement will prevail over any conflicting policy or agreement for the provision or use of the Services. This Agreement sets forth your exclusive remedies with respect to the Services. If any provision or portion of this Agreement is held to be invalid or unenforceable under Law, then it will be reformed and interpreted to accomplish the objectives of such provision to the greatest extent possible, and all remaining provisions will continue in full force and effect.

The rights and remedies of the parties under this Agreement are cumulative. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of that party’s rights to subsequently enforce the provision.

The heading titles preceding the text of Sections and Subsections included in this Agreement are for convenience only and will not be deemed part of this Agreement.  The use of the terms “including” or “include” will in all cases mean “including, without limitation” or “include, without limitation” respectively.  The word “or” is not exclusive. Reference to any person or entity includes their successors and assigns to the extent such successions and assignments are effective in accordance with the terms of this Agreement.  References to a Law means such Law as amended from time to time and includes any successor Law thereto.  Unless the context requires otherwise, the use of the terms “hereunder,” “hereof,” “hereto” and words of similar import will refer to this Agreement as a whole and not to any particular Section, Subsection, paragraph or clause of this Agreement.  

25. Survival

Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement will survive and remain in effect in accordance with its terms upon the termination of this Agreement.

26. eCheck Terms and Conditions

If you are using our eCheck or other ACH, electronic check or other check processing services, you agree to the following additional terms and conditions:

1. Acknowledgments. In addition to our other rights set forth in this Agreement, you acknowledge and agree that:
   • You will authorize us to initiate any and all debit or credit ACH entries (“Entries”), and we will not originate any Entries on your behalf without your authorization;
   • You will comply with NACHA Network Rules;
   • You will not initiate or request that we initiate any Entries that that violate Law; 
   • You have not restricted the types of Entries that we may initiate, though we may restrict the types, volumes, or amounts of Entries at our discretion;
   • We may terminate this Agreement, or suspend the initiation of Entries for your violation of (or if we have reason to suspect that you have violated) NACHA Network Rules; and
   • We have the right to audit your compliance with the terms of this Agreement and NACHA Network Rules.
2. Representations and Warranties Regarding Authorization. You represent and warrant with respect to all Entries originated by you that (1) each counterparty whose account is being debited/credited (a “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. 

Appendix A
Glossary

“AAA” is defined in Section 18 of this Agreement. 

“Account” is defined in Section 10 of this Agreement.

“Account Administrator” is defined in Section 1 of this Agreement.  

“ACH” is defined in Section 1 of this Agreement.

“Additional Terms” is defined in Section 11 of this Agreement.  

“AffiniPay” is defined in the first sentence of this Agreement.

“AffiniPay Data” means details of the transactions that are transmitted through the AffiniPay systems and infrastructure, information used in fraud detection and analysis, aggregated or anonymized information generated from the Services, and any other information created by or originating from AffiniPay or the Services.

“AffiniPay Network” is defined in Section 24 of this Agreement.

“Agreement” is defined in the first sentence hereof. 

“API” is defined in Section 10 of this Agreement.

“Bank” means a financial institution that is authorized by a Network to enable the use of a Payment Method by accepting Charges on behalf of the Networks, and routing these Charges to the Networks, including any entity acting on behalf of, or sponsored by, such a financial institution for the purposes of routing such Charges to the Networks.

“Charge” means a credit or debit instruction to capture funds from an account that a Purchaser maintains with a bank or other financial institution in connection with a Transaction.

“Chargeback” means an instruction initiated by a Purchaser or the Purchaser’s bank for the return of funds for an existing Charge (including a chargeback or dispute on a Network).

“Clearing Accounts” is defined Section 12(a) of this Agreement.  

“Communications” is defined in Section 4(a) of this Agreement.

“Customer” is defined in the first sentence of this Agreement.

“Data Incident” is defined in Section 9(b) of this Agreement.

“Dispute” means any claim, controversy or dispute (whether involving contract, tort, equitable, statutory or any other legal theory) between you and AffiniPay, including, but not limited to, any claims relating in any way to this Agreement (including its breach, termination and interpretation), any other aspect of our relationship, AffiniPay advertising, and any use of AffiniPay software or Services. “Disputes” also include any claims that arose before this Agreement and that may arise after termination of this Agreement. 

“Entries” is defined in Section 26 of this Agreement.

“Feedback” is defined in Section 7 of this Agreement.

“Fees” is defined in Section 3 of this Agreement.

“Fine” means any fines, levies, or other charges imposed by us, a Network or a Bank, caused by your violation of Network Rules, Law or this Agreement, or as otherwise imposed pursuant to Network Rules.

“Guarantee” is defined in Section 12(e) of this Agreement.

“Law(s)” means all applicable federal, state or local court orders, laws, regulations, codes, rules or guidelines imposed by law, any competent government authority, governing body or regulator in each country and jurisdiction applicable to either party’s business and your use of the Services and API.  

“NACHA” is defined in Section 1 of this Agreement.

“Network” means the provider of a Payment Method, such as Visa Inc. (“Visa”), MasterCard Inc. (“MasterCard”), American Express Corporation (“American Express”), Discover Financial Services (“Discover”), NACHA, any affiliate thereof, or other payment card networks, associations, or companies.

“Network Rules” means the guidelines, bylaws, rules, and regulations imposed by the Networks that operate Payment Methods supported by AffiniPay (including the Network Rules for the Visa, Mastercard, Discover and American Express Networks and NACHA).

“Our” is defined in the first sentence of this Agreement.  

“Payment Data” means Payment Method account details for a Purchaser, and includes, with respect to credit and debit cards, any of the cardholder’s name, account number, card expiration date, zip code, CAV2, CVC2, CVN2, CVV2, or CID, information communicated to or by Network or Bank, financial information specifically regulated by Law and Network Rules, and any other information used with the Services to complete a Charge or other transaction.

“Payment Method” means a type of payment method that AffiniPay accepts as part of the Payment Processing Services, such as credit card, debit card, and ACH.

“PCI-DSS” means the Payment Card Industry Data Security Standard and, if applicable, the Payment Application Data Security Standards (“PA-DSS”) promulgated by the PCI Security Standards Council.

“Personal Data” means information that identifies a specific living person and is transmitted to or accessible through the Services.

“Prohibited Businesses” is defined in Section 5 of this Agreement.

“Purchasers” is defined in Section 1 of this Agreement.

“Receiver” is defined in Section 26 of this Agreement.

“Refund” means an instruction initiated by you to return funds to a Purchaser for an existing Charge.

“Reserve” is defined in Section 12(b) of this Agreement.  

“Reversal” means an instruction initiated by a Network, a Bank or us to return funds for an existing Charge. Reversals may result from (i) invalidation of a charge by a Network or a Bank, (ii) funds settled to you in error or without authorization, or (iii) submission of a Charge in violation of the applicable Network Rules or this Agreement.

“Security Standards” means, collectively, the PCI-DSS and all rules, regulations, standards or guidelines adopted or required by the Networks or the PCI Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Payment Data, including, but not limited to, PCI Standards, Visa’s Cardholder Information Security Program (CISP), MasterCard’s Site Data Protection Program (SDP), American Express’s Data Security Operating Policy (DSOP), and Discover’s Information Security & Compliance Program (DISC), in each case as they may be amended from time to time.

“Service(s)” is defined in the first paragraph of this Agreement.  

“Sensitive Data” means, collectively, all Personal Data, Payment Data, and AffiniPay Data.

“Settlement Account” means, collectively, the bank or other financial institution accounts that you designate as the accounts into which your transactions should be settled. In the event that you designate a Trust Account as a Settlement Account, you must have at least one Settlement Account that is not designated as a Trust Account.

“Third Party Services” is defined in Section 22 of this Agreement.  

“Trust Account” means a Settlement Account that both (i) is held in trust by a law firm for the benefit of a client, such as an attorney escrow, retainer or similar account, and (ii) is designated as a “Trust Account” by you in the manner proscribed by AffiniPay in the User Guide.

“Us” is defined in the first sentence of this Agreement.

“User Data” means information provided by you to us that describes your business products or services.

“User Guide” is defined in the second paragraph of this Agreement.

“We” is defined in the first sentence of this Agreement.

“Website” is defined in the second paragraph of this Agreement.

“You(r)” is defined in the first sentence of this Agreement.

Appendix B
Pricing Addendum

Customer pricing, unless otherwise agreed in writing between you and AffiniPay, is set forth (as applicable) at the following websites, each of which is incorporated by reference in this Agreement:

https://www.lawpay.com/features/pricing/

https://www.clientpay.com/pricing/ 

https://www.cpacharge.com/features/pricing/ 

Appendix C
Additional Terms

Adyen Terms and Conditions

Pursuant to the AffiniPay Services Agreement (the “AffiniPay Agreement”), you are also required to accept these Adyen Terms and Conditions (for use with AffiniPay) (these “Terms and Conditions”). Any terms used but not defined in these Terms and Conditions will have the meaning provided in the AffiniPay Agreement.

These Terms and Conditions constitute a legal agreement between you, AffiniPay, Processor and an Acquiring Institution (collectively, the “Servicers”), which is formed by the Servicers’ offer of these terms to you, your acceptance of these terms, and Servicers’ subsequent provision of services to you in accordance with these Terms and Conditions. Any Servicer or Card Network may enforce any provisions of these Terms and Conditions. 

1. Definitions

In these Terms and Conditions, the following definitions will apply:

 

3D Secure	The “Three-Domain Secure” protocol developed by Visa International Inc. (Visa) branded as “Verified by Visa” and “MasterCard SecureCode” developed by MasterCard International Inc. (MasterCard), including successive versions thereof and any amendments thereto.
Acquiring Institution	An entity that is authorized by a Network Owner to enable the use of a Payment Methods by accepting Transactions from Customers on behalf of the Network Owners, routing these to the Network Owners or Issuers and collecting and settling the resulting funds to Customer.
AffiniPay Platform	The e-commerce platform made available by AffiniPay for use by Customer.
Authorization	The process whereby a Payer (or Customer on Payer’s behalf) requests permission for a Payment Method to be used for a particular purchase of Customer’s Service or Product.
Capture	The confirmation by Customer to Processor that a Transaction for which it received an Authorization is to be executed and the Account of a Payer is to be actually charged for the Transaction.
Card	Any form of Credit Card or Debit Card, which may be used by a Payer to carry out a Transaction on such Payer’s Card account.
Card Network	Visa, MasterCard, Discover, American Express or comparable parties licensing Cards.
Cardholder	Any person who is issued a Card and possesses and uses a Card and, where required on a Card, whose signature appears on a Card as an authorized user.





Chargeback	A Transaction which is successfully charged back on request of a Payer or the Issuer pursuant to the relevant Network Rules resulting in a cancellation of a Transaction in respect of which a Customer has been paid or was due to be paid. If a Chargeback occurs for a Transaction in respect of which Customer already received Settlement of the related funds, this results in the unconditional obligation for Customer to immediately return the Settled funds to Processor, to enable Processor to return such funds to the Network Owner or Acquiring Institution.
Customer, you/your	The party entering into the AffiniPay Agreement and these Terms and Conditions and for which Processor processes Transactions related to Customer Service and Customer Products.
Customer Agreement	The terms agreed to in the AffiniPay application process, the AffiniPay Agreement, these Terms and Conditions, as well as the terms of any documents referred to in the application process that comprise the agreement entered into between Servicers and Customer for the provision of the Services to Customer, including all Schedules and other documents appended thereto by reference.
Customer Product / Customer Service	A product/service that Customer is selling or offering and for which Transactions are processed.
CVM Code	The 3- or 4-digit numeric verification code that is printed on a Card. This code may be referred to as a CVV, CVV2, CVC, CVC2, CSC, CSC2, CID or other similar term, depending on the Card Network.
Delivery Date	The date on which the complete Customer Product and/or Customer Service is delivered to a Payer who paid for the corresponding Transaction.
Fine	Any fine, uplifted service fee or other additional payment as imposed by the Network Owners and/or Acquiring Institutions to AffiniPay, Customer and/or Processor, as a result of situations such as, but not limited to, breach of Network Rules by Customer or caused by Customer or AffiniPay, excessive fraud levels or excessive Chargeback levels.
Fraud Control Tool	The fraud control tool set made available by Processor as part of the Services, which assigns a fraud score to Transactions indicating the likelihood of the Transaction being fraudulent and enables AffiniPay (on behalf of Customer) to automatically reject Transaction based on threshold values set by AffiniPay on behalf of Customer.
Issuer	An institution that issues Payment Methods to a Payer and whose name appears on a Card or bank account statement as the Issuer or who enters into a contractual relationship with a Payer with respect to the Payment Method.
Order Currency	The Currency in which the Transaction is originally offered to a Payer.
Payer	A person or entity, including Cardholders, that is paying for the Customer Products/Customer Services.
Payment Currency	The Currency in which a Transaction is processed.
Payment Details	The information which makes up a Transaction message which needs to be submitted to the Payment Interface to enable the processing of the Transaction by Processor and to perform fraud checks, including details regarding a Card, a Payer, relevant authentication details and the payment amount.
Payment Interface	An electronic connection method provided by AffiniPay or Processor to Customer for providing the Payment Details for individual Transactions allowing Processor to provide its Services with respect thereto.
Payment Method	A method of enabling payments by Payers to Customers such as Cards, online and offline bank transfers and direct debits offered by the Network Owners.
Processor	Adyen N.V., a company registered in Amsterdam under number 34259528 and having its seat at Simon Carmiggeltstraat 6-50, 1011 DJ in Amsterdam, the Netherlands.
Refund	A (partial) reversal of a particular Transaction on the initiative or request of Customer, whereby the funds are reimbursed to a Payer.
Network Owner	The party offering and/or regulating the relevant Payment Method.
Network Rule	The collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Network Owners as may be amended or supplemented over time and with which Customer must comply when using the relevant Payment Method. Processor or AffiniPay may make extracts and summaries of the Network Rules available to Customer, but only the then current applicable Network Rules as issued by the relevant Network Owner are binding on Customer.
Service(s)	The collective set of payment processing, fraud control, reconciliation, reporting, Settlement and other services as provided by Processor to Customer to enable Customer to use Payment Methods to receive payment from its Payers.
Settlement	The payment of amounts owed by Processor to Customer, owed with respect to amounts received by Processor from Acquiring Institutions or Network Owners for Transactions validly processed for Customer, minus the amounts for Refund and Chargebacks, fees and the amounts needed to keep Customer Deposit on the then current Deposit Level. “Settle” and “Settled” will have the corresponding meanings.
Software	The collective set of programs and data developed and/or operated by Processor as needed to provide the Service to its Customers, including the Payment Interface.
Transaction	An Authorization request of a Payer for a payment from a Payer to Customer submitted by Customer to Processor.
Uncompleted Order Amount	The total amount of Authorized, Captured and/or Settled Transactions for Customer on any point in time, for which Customer Products and/or Customer Services have not been delivered to the relevant Payers at that time and/or for which the return rights or order cancellation rights of a Payer under the terms and conditions of Customer and/or applicable law have not yet lapsed.





2. Description of the Service

   1. Payment Processing

      Customer will be using the Services via the AffiniPay Platform. AffiniPay is representing Customer towards Processor with respect to Customer’s use of the Services and Processor may assume that AffiniPay is authorized and mandated by Customer to use the Services, submit Transactions on behalf of Customer and in accordance with Customer’s permissions and instructions which AffiniPay will obtain from Customer.

      Customer is obliged to ensure all data that Processor requests to be provided for a Transaction, including those needed for fraud checks, are provided. If Customer fails to provide the requested data with each Transaction, Processor may be forced under the Network Rules to suspend Transaction processing and/or Transactions may be refused by the relevant Network Owners or Acquiring Institutions. Processor may revise the required data needed to process Transactions from time to time by informing Customer via AffiniPay as needed to be able to process such Transaction and conduct fraud checks under applicable Network Rules. AffiniPay is required to (i) access Transaction level data to provide support to Customer at the level of individual Transactions and (ii) technically manage user settings of Customer with respect to the Services on Customer’s behalf (e.g. 3D Secure or fraud control settings).

   2. Customer Registration and KYC Check

      In order to enable Processor to comply with anti-terrorism, financial services and other applicable laws and regulations and KYC (‘Know Your Customer’) requirements imposed by the Network Owners and Acquiring Institutions, Customer must when entering into the Customer Agreement and thereafter upon Processor’s request provide certain information about itself and its activities (the “Registration Information”). Customer warrants unconditionally that all Registration Information it provides is correct and up to date.

      Customer will provide Processor with at least five days’ prior written notice via AffiniPay of any change of the Registration Information. Customer will upon request from Processor provide such additional information and supporting documentation as Processor may reasonably determine to need to ensure compliance with applicable laws and regulations and Network Owner and Acquiring Institution KYC requirements. Customer agrees that Processor may run further checks on Customer’s identity, creditworthiness and background by contacting and consulting relevant registries, government authorities and Customer relations. Processor will process Customer’s Registration Information in accordance with its Privacy Statement (available on www.adyen.com).

      Processor’s acceptance of Customer as user of the Services and the relevant Payment Methods is strictly personal and limited to the use by Customer of the Services for payment of Customer’s own products and services. Customer may not use the Services to facilitate the payment for products or services sold by third parties and therefore may not resell the Services to third parties. Customer will only use the Services in the pursuit of its trade, business, craft or profession.

      Support for each Payment Method is subject to acceptance by the relevant Network Owner or Acquiring Institution used by the Network Owner, which such Acquiring Institution or Network Owner may withhold or withdraw in its discretion at any time. Customer hereby authorizes Processor to submit Registration Information received from Customer to the relevant Network Owners and Acquiring Institutions to obtain permission for providing access to their Payment Methods for Customer.

   3. Payment Method Support

      Supported Payment Methods as part of the Services may change from time to time. Processor will give at least 1 month notice (through AffiniPay) of any discontinued or changed support of any Payment Method, unless this is not reasonably possible given the cause for this decision. Processor will use its reasonable endeavors to offer an alternative for any discontinued Payment Method to Customer.

      Customer understands that Acquiring Institutions and/or Network Owners may cancel certain Payment Methods, change the characteristics thereof or change the acceptance criteria under which they make them available. As a consequence, Processor may be forced to block Customer from further use of a Payment Method or impose additional restrictions or conditions on its continued use as a consequence of such decisions of the relevant Acquiring Institution and/or Network Owner. Where possible Processor will use its reasonable efforts to give Customer prior notice (through the AffiniPay) of any such change or cancellation with respect to a Payment Method.

   4. 3D Secure

      Processor will as part of the Services support 3D Secure authentication where supported by the relevant Network Owner and/or third party Acquiring Institution.

   5. Payment Currency

      Processor will have the right to offer a Payer the option to use a different currency than the Order Currency, in which case Customer will still always receive Settlement of the Transaction amount in the Order Currency (except in case another currency is agreed or Customer does not make a bank account available for Settlement in the Order Currency).

   6. Fraud Control

      All Transactions processed as part of the Services will be screened by Processor’s Fraud Control Tool, which performs a number of checks on a Transaction and attaches a resulting total score to the Transaction, which represents the likelihood of the Transaction being fraudulent. The Fraud Control Tool does not guarantee the prevention of fraudulent Transactions, nor against resulting Chargebacks or fines. Regardless of the resulting total score, Transactions may be fraudulent or non-fraudulent. AffiniPay will technically manage the settings of the Fraud Control Tool on behalf of Customer. In addition, Processor reserves the right to cancel Transactions that it has reasonable grounds to suspect to be fraudulent or involving other criminal activities, even if the Fraud Control Tool failed to block the Transaction.

   7. Settlement

      Funds from a Payer charged for the validly processed Transactions of Customer are settled by the relevant Acquiring Institution or the Network Owner to the account(s) held by Processor. The funds Processor receives from payment service users or via another payment service provider and held in the payment processing account(s) by Processor are safeguarded in accordance with the safeguarding requirements of The Dutch Central Bank (De Nederlandsche Bank). Processor will subsequently settle received funds directly to Customer - withholding from the received funds the fees agreed between AffiniPay and Customer – who is the creditor of the received funds and holds sole power of disposition over such funds. The Settlement is based on the binding Customers’ Settlement instructions which are submitted by AffiniPay on behalf of Customer via the AffiniPay Platform. AffiniPay is under no circumstances entitled to make any individual instructions (other than Settlement instructions described in the previous sentence) to Processor regarding the settlement of the funds.

      Processor is only obliged to provide Settlement of Transactions for which it has received funds from the Acquiring Institution or the Network Owner. It is Customer's responsibility to evaluate if the conditions imposed by the Payment Methods for Settlement (as communicated from time to time by through the AffiniPay) are acceptable to Customer. This is specifically relevant for certain Payment Methods that are not monitored and regulated by governmental financial services authorities, such as, but not limited to, non-Card Network related prepaid cards and short message service (SMS) and interactive voice response (IVR) payments. Customer understands and agrees that Processor will not compensate Customer for late or non-performance, insolvency or bankruptcy of the Acquiring Institution or Network Owner due to which Customer receives late Settlement or no Settlement at all for processed Transactions.

      Processor reserves the right to withhold Settlement of Transactions if they are suspected to be fraudulent, related to illegal activities or likely to become subject to a Chargeback by Processor and/or the relevant Acquiring Institution and/or Network Owner, until satisfactory completion of Processor's investigation, that of the relevant Acquiring Institution or Network Owner or that of a third party nominated by any of these parties. Customer will give its full co- operation to any such investigation.

      No interest will be due over amounts held by Processor prior to Settlement of such funds to Customer.

   8. Required Data

      Customer will from time to time upon request of Processor provide all required information regarding the then current actual or expected Delivery Dates for processed Transactions and estimates for the average time between Transaction Authorization and the related Delivery Date. Further, upon Processor’s request, Customer will provide Processor all requested information on Customer’s then -current ability to provide Customer Products and Services it sells by means of the Services, its financial status, solvency and liquidity.

   9. Customer Obligations and Restrictions

      Customer may only use the Services for payment of those Customer Products and Services which Customer agreed with AffiniPay to be offered through the AffiniPay Platform. Customer will not use the Services for the payment of Customer Products and/or Customer Services (i) where it is illegal to offer or provide these to or from the relevant country and/or (ii) which are stated in Processor's Prohibited and Restricted Products and Services List which is set forth on www.adyen.com (provided that, notwithstanding the linked Prohibited and Restricted Products and Services List, the categories “bankruptcy lawyers”, “Charities”, “Private Medical Practices and eDoctors”, “PACs”, “other Political/Charitable Donations” are Customer Products and/or Customer Services for which a waiver was granted and which are therefore allowed). This list may be updated in Processor’s discretion where needed to ensure legal compliance, compliance to Network Rules, prevent high levels of Chargebacks and/or to reduce exposure to potentially fraudulent or illegal transactions. Customer will be informed of such updates by AffiniPay. Where a published change affects a significant portion of Customer’s Product or Services, Customer may terminate the Customer Agreement by giving written notice to Processor (via AffiniPay). Processors´ acceptance of Customer as customer should not be

      interpreted as an advice or opinion of Processor as to the legality of Customer’s Products and Services and/or of Customer’s intended use of the Services therefore.

      The Services of Processor should not be used (and Transactions may not be submitted for processing) for prepaying Customer Products and Services for which the Delivery Date is in part or in whole more than 12 months after the date the Transaction is submitted for processing. This can make Transactions more likely to be subject to Chargebacks.

   10. WARNING – Fines from Network Owners

       For violations of certain key requirements under the Network Rules by Customers, some Network Owners (and in particular the Card Networks) may levy significant fines. The Network Owners do this to protect Payers, Customers and providers of the Payment Methods collectively against misuse, fraud, illegal activities, breach of applicable laws, reputational damage and excessive costs. Key examples of Network Rules that are subject to such fines: (i) using the Payment Method for other Customer Products and Services than for which Customer received express authorization to use it from AffiniPay; (ii) using the Payment Method for Customer Products and Services which are violating applicable laws; (iii) using the Payment Method for selling Customer Products and Services for which the Network Owner explicitly prohibited its use (e.g. adult content, drugs, arms, gambling); (iv) using the Payment Method for the benefit of a third party / reselling the use of the Payment Method to a third party (the authorization for Customer to use a Payment Method is strictly personal); (v) percentage of Transactions of a Customer which is subject to a Chargeback is above the applicable acceptable level; (vi) breaches of security and confidentiality obligations with respect to Payment Details (see clauses 4.1 and 4.3 for more information on this); or (vii) fraudulent, misleading activities of which Payers are the victim.

       Customer is strongly advised to regularly review the then current Network Rules (made available via AffiniPay) and relevant changes to applicable laws as applicable to its Customer Products and Services and business practices to ensure compliance to applicable Network Rules. Where Customer finds the Network Rules (including Fine possibility) to be unacceptable, Customer is free at any point in time to stop using the relevant Payment Method (the Network Rules and these terms remain applicable to previously processed Transactions for Customer).

       Where Processor becomes aware of and/or receives any notice of a potential exposure to a Fine related to any Customer behavior, Customer will, upon Processor’s request, provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation, notwithstanding all other rights and remedies of Processor in such situation as per these Terms and Conditions. Where possible Processor will share relevant feedback received by Customer with the Acquiring Institution/Network Owner handling the potential Fine so it can be taken into consideration by the Acquiring Institution / Network Owner.

   11. Taxes

       Customer agrees to defend, hold harmless and indemnify Processor from and against any VAT, turnover and other taxes or levies including penalties, interests, surcharges ("Taxes") due on any product or service of Customer or Affi niPay (including but not limited to any Transactions, Customer Products and Customer Services) and costs or damages related to such Taxes. Customer will (i) apply all reasonable efforts to ensure that Processor cannot be held liable for any Taxes and costs or damages related to such Taxes, (ii) will promptly inform Processor of any such liability and (iii) will provide Processor with all relevant information and documentation in that respect. Furthermore, Customer and AffiniPay shall be jointly and severally liable towards Processor for any such Taxes and costs or damages related to such Taxes.

3. Set-Off

   Without prejudice to any right to set-off which Processor may be entitled to as a matter of law, Processor may set-off any amounts due to Customer against any amounts owed or other liabilities of Customer, now or at any time hereafter due, owing or incurred by Customer to Processor under, in connection to, or pursuant to these Terms and Conditions and/or the Customer Agreement.

4. Integration

   1. Integration via Partner

      Customer will integrate with the Payment Interface via the systems of AffiniPay and with the assistance of AffiniPay as agreed between Customer and AffiniPay. Processor is not responsible for such integration but will ensure the Payment Interface is available for use by AffiniPay for such purpose and will where needed provide second line support for such integration via AffiniPay.

   2. Changes to Software

      Processor reserves the right to change or amend the Software and the interface to it at any time, to provide Customer with a new version thereof, and/or to change the functionalities and characteristics of the Software. No changes will be implemented by Processor which materially reduce functionality of the Services which was explicitly committed to be provided under the Customer Agreement, except where this is made necessary by: (i) the need to follow generally accepted changes in industry standards, (ii) changes in applicable laws or Network Rules, (iii) need for increased security due to security risks identified by Processor or (iv) other reasonable grounds which warrant the reduction of functionality. 

   3. Security of Payment Details

      Customer guarantees not to copy, capture or intercept Payment Details such as credit card numbers, CVM Codes, ‘PIN’ codes that are provided by a Payer for payments to be processed via the Services. This rule is imposed by the Network Owners to protect Payers against misuse of their Payment Details (e.g. Card numbers) and is strictly enforced by the Network Owners, and a violation of this rule can lead to the application of significant fines by Network Owners. If Processor has reason to believe that Customer is copying, capturing or intercepting Payment Details, Processor has the right to suspend processing of Transactions and Settlement. Customer will fully indemnify and hold Processor harmless from any losses, claims (including applied fines by the Network Owners), costs or damage Processor incurs as a result of Customer’s breach of this obligation.

5. Customer Communications

   All first line communications with Customer regarding the use of the Services will run through AffiniPay. Processor will also inform Customers of relevant changes in applicable Network Rules, financial laws and regulations via AffiniPay.

6. Security and Compliance

   Processor will take reasonable measures to provide a secure payment system and will keep its systems used to provide the Services certified in accordance with the PCI-DSS security standards.

7. Chargebacks and Refunds

   1. Chargebacks

      Customer will take all reasonable steps to ensure that Customer Products and Services are actually delivered in accordance with applicable Network Rules, laws and orders placed by a Payer, to avoid any Chargebacks. In case Processor has reasons to suspect that Customer is not delivering its Customer Services or Customer Product on or prior to the Delivery Dates used to calculate the Uncompleted Order Amount and/or if Processor has reason to suspect that Customer Products or Customer Services for which Processor processes Transactions are

      based on fraud, likely to cause high Chargeback volumes and/or illegal, Processor has the right to suspend Settlement of all related Transactions and/or block Authorizations until Processor has been given assurances to its satisfaction that the relevant Customer Products and Services are actually delivered in accordance with applicable laws and orders placed by a Payer.

   2. Refunds

      Refunds will be charged as a Transaction by Processor and a Refund fee can be applied by Processor after giving prior notice to Customer, if manual intervention is needed or additional costs are incurred by Processor to process such Refund. Processor will not execute a Refund (meaning the relevant sum will not be returned by Processor to the relevant Payer, directly or via the relevant Acquiring Institution / Network Owner) in case the funds for this cannot be subtracted from the next Settlement or are not funded otherwise. Refunds are not funded by Processor from its own means.

8. Property Rights

   The property rights in the Software and other materials and all other intellectual property rights related to the Services are owned by Processor and its licensors. The Customer Agreement does not transfer any intellectual property rights with respect thereto and only provides Customer a limited, non-exclusive and non-transferable license to use the Software and all other materials made available by Processor solely for the purpose of using the Services in accordance with these terms and the applicable usage instructions communicated to Customer via Processor website from time to time.

9. Confidentiality, Privacy and Compliance

   1. Confidentiality

      All information relating to Customer or to Processor and designated as being confidential, and all information not expressly designated as confidential but which should reasonably be deemed confidential by reason of its nature or content is considered “Confidential Information”. Each party remains the owner of all data made available to the other party. Each party undertakes to take all necessary steps to protect the confidential nature of all Confidential Information of the other party, agreeing, in particular:

      • to share Confidential Information solely with personnel and representatives of the parties (including AffiniPay) which have a need to have access to such information in order to exercise rights and obligations under the Customer Agreement; and
      • to refrain from making any Confidential Information available to any third party without the prior written consent of the other party except for Processor where necessary to perform the Services.

      The obligation to maintain confidentiality does not apply to information:

      • available to the general public;
      • disclosed to one of the parties by a third party without any obligation of confidentiality;
      • already in the possession of or known to one of the parties at the time of disclosure;
      • developed independently of the Confidential Information by the other party; or
      • if and to the extent to one of the parties and/or their employees are obliged under an act or by decision of a court or administrative authority to disclose such information.

      The obligation of confidentiality as described in this clause will remain in effect will remain in effect for a period of ten years following the termination or expiration of the Customer Agreement, regardless of the grounds for termination.

      The following data is to be considered confidential, without need for special mention:

      • all financial data;
      • any agreed Customer specific terms and conditions in the Customer Agreement, if applicable; and
      • all user manuals, guides and any Software relating to Processor’s products and services.

   2. Privacy

      Where Processor processes personal data while performing the Services it will act as data processor under the direction and responsibility of Customer and/or AffiniPay in accordance with EU General Data Protection Regulation 2016/679, including any successor thereof, and applicable Dutch privacy laws. Customer will comply with the personal data protection laws of Customer’s country of origin and of those countries in which Customer offers its goods and/or services from time to time, in particular when processing and sending personal data to Processor in the context of using the Services and submitting Transactions. Both Processor and Customer will implement appropriate measures to protect personal data against misuse. Processor will not use personal data processed by Processor for Customer under the Customer Agreement for any other purpose then providing the Services and complying with applicable laws and Network Rules.

1. 1. Use of Services

      In accordance with Dutch laws on hacking and computer crime, Customer will only use the Services for the purposes as agreed herein and will specifically not perform or allow to be performed any actions detrimental to the security or performance of the Services without Processor’s prior written consent.

2. Duration and Cancellation

   1. Duration

      These Terms and Conditions will be entered into for an indefinite period until terminated by any party (a) in accordance with the terms hereof or (b) by giving at least 2 months’ written notice to the other parties. Such notices may be given via AffiniPay by any party. These Terms and Conditions will automatically terminate when the AffiniPay Agreement terminates or expires.

   2. Termination

      Processor has the right to terminate the Customer Agreement and/or stop processing or Settlement of Transactions for Customer immediately in part or in whole if:

      • The provision of Customer's Services/Products for which Processor provides the Service is reasonable suspected by Processor to be in breach with legislation in the country where the Customer Services/Products are offered from or to.
      • Customer has materially changed the type of Customer Services/Products without obtaining Processor’s prior written permission to use the Services for the new or changed types of Customer Services/Products;
      • Customer materially breaches any of the terms of the Customer Agreement, the Network Rules and/or applicable laws in the context of using the Services.
      • An Acquiring Institution or Network Owner demands Processor to stop or suspend providing Services to Customer with respect to Payment Methods made available by such Acquiring Institution or Network Owner to Processor.
      • Processor finds there are clear indications that Customer is or is likely to become insolvent and/or unable to provide a material part of the Customer Products/Services. or
      • The AffiniPay Agreement has been terminated or has otherwise expired and/or an event permitting a termination by AffiniPay under the AffiniPay Agreement occurs.

3. Liability

   1. No Liability for Third Parties

      Processor will only be liable for its own acts or omissions and not for acts or omissions of third parties. This exclusion expressly applies to acts or omissions of Network Owners and Acquiring Institutions or for events or activities originating outside the systems of Processor (such as internet disturbances or malfunctions in third party systems), except in case such events were caused by the intent or gross negligence of Processor.

   2. Limitation of Liability

      The total liability of Processor under the Customer Agreement towards Customer for breach of contract, tort or under any other legal theory in any calendar year is limited to an amount equal to 10,000 euro. Processor will not be liable for any special, indirect, or consequential damages (including any loss of profit, business, contracts, revenues or anticipated savings, or damage to good name) as a result of breach of contract, tort or under any other legal theory.

      Neither Processor, Customer nor any other party to the Customer Agreement excludes or limits its liability under the Customer Agreement for intent, gross negligence, death, fraud or personal injury.

4. Indemnification

   If any claims for damages, costs and expenses are asserted against Customer by third parties asserting that these third parties are the owner of any rights regarding the Software and/or systems of Processor, Processor will indemnify Customer without delay from these third- party claims, including Customers reasonable costs of its legal defense, and offer Customer the necessary assistance in its legal defense.

   Customer will indemnify and hold Processor harmless from any claim (including legal fees) brought against Processor by any third party (expressly including Network Owners and Acquiring Institutions and their claims for payments of fines) as a result of Customer’s breach of the terms of the Customer Agreement, applicable laws and/or the Network Rules applying to the Payment Methods used by Customer.

5. General Provisions

   1. Null Provisions

      In the event that any provision of these Terms and Conditions is declared null and void or inapplicable, said provision will be deemed non- existent, and all other provisions of the Customer Agreement (including these Terms and Conditions) will remain applicable. The parties undertake to take all steps to eliminate the provision declared null and void and/or inapplicable and to replace the same with a provision approaching, insofar as possible, the economic objective of the provision declared null and/or inapplicable.

   2. Entire Agreement

      The Customer Agreement contains all the commitments between the parties and replaces all other prior contractual commitments between the parties. No representation, warranty or undertaking given by any of the parties to any of the other parties under the Customer Agreement will be of any force or effect unless expressly reduced to writing and repeated in the Customer Agreement, and all implied or prior representations, warranties and undertakings are, save to the extent expressly set out in the Customer Agreement, expressly excluded to the fullest extent permitted by law.

   3. Changes to these Terms and Conditions

      Processor may revise these Terms and Conditions from time to time by giving at least 30 days written notice to Customer via AffiniPay. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer may terminate the Customer Agreement by giving at least one month written notice to Processor (such termination notice to be sent at the latest 60 days after Customer received notice of the change). Customer is not entitled to object to and will not have the rights set out in this clause for any change which Processor implements in order to comply with applicable law, regulations or requirements imposed by the relevant Acquiring Institutions and/or Network Owners or financial regulators. For such imposed changes shorter notice periods may be applied by Processor as is needed to comply with the relevant requirement.

   4. Online Contracting – written confirmation

      If Customer has entered into the Customer Agreement with Processor via AffiniPay’s website or via any other online means, Processor may at any time request that Customer re-confirms its acceptance of the terms of the Customer Agreement (including these Terms and Conditions) by means of a written document signed by an authorized representative of Customer. If Customer does not comply with such request within five working days after receiving a request by Processor to do so (which request may be issued to Customer via the contact email address submitted by Customer when concluding the Customer Agreement), Processor reserves the right to suspend all or part of the Services until Customer has complied with such request.

   5. Translations

      The terms of the Customer Agreement, including these Terms and Conditions are made available to you in English. Any other terms or disclosures made available to you regarding this Customer Agreement in any non-English language do not form part of our agreement and are for informational purposes only.

   6. Applicability of Payment Services Directive

      Title 7B of Book 7 of the Dutch Civil Code (Burgerlijk Wetboek) and other laws and regulations implementing Directive (EU) 2015/2366 (“PSD2”) or its predecessor, Directive 2007/64/EC ("PSD"), are not applicable to the extent it is permitted to deviate from relevant provisions in relationships with non-consumers, in accordance with Article 38 and 61 PSD2 (or Article 30 and 41 PSD).

      Where Processor provides payment services for Customer within the European Economic Area ("EEA") and where a Payer's payment service provider is located in the EEA, the parties hereby agree and confirm in accordance with article 62(2) of PSD2 that Customer will pay the charges levied by Processor and a Payer will pay the charges levied by his payment service provider (i.e. the ‘SHA’ (shared) principle).

   7. Dispute Handling

      The parties undertake to take all steps to reach an amicable agreement to any dispute arising in relation to the validity, interpretation or fulfilment of the Customer Agreement, without prejudice to a party's right to seek interim relief against any other party (such as an injunction) through the competent courts to protect its rights and interests, or to enforce the obligations of any of the other parties.

   8. Applicable Law and Jurisdiction

      These Terms and Conditions are solely governed by Dutch law, excluding the Convention on Contracts for the International Sale of Goods. In the absence of an amicable agreement, any dispute relating to the validity, interpretation or fulfilment of these Terms and Conditions will be submitted to the exclusive jurisdiction of the competent courts of Amsterdam the Netherlands.

Agreement for Affirm Services

WHEREAS, the parties hereto wish to set forth the terms and conditions under which Professional may use the Services through Affirm, Inc. (“Affirm”) in connection with AffiniPay’s platform to enable such Professionals’ Customers to purchase certain legal, accounting and other professional services (“Professional Services”). 

WHEREAS, Affirm (itself or through its affiliates or bank partners) offers certain consumer payment options through Affirm’s proprietary financial platform and related application programming interfaces (“APIs”), virtual card networks, and other technology and access solutions (collectively, the “Services”); and

WHEREAS, Professional wishes to offer the Services through AffiniPay to Customers seeking to purchase Professional Services from Professional.

NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which hereby is acknowledged and intending to be legally bound hereby, AffiniPay and Professional agree as follows:

1. Additional Professional Obligations.  In connection with offering Affirm Services through AffiniPay to Customers and potential Customers as a financing option for Professional Services sold by Professional, in addition to the terms and conditions set forth on Merchant’s website, Professional shall:
   1. Accurately explain the financing arrangement to the Customer pursuant to any training materials or marketing materials provided by AffiniPay or Affirm;
   2. Ensure any loan proceeds are deposited into a client trust account (when required) and/or comply with all Applicable Laws;
   3. Not send privileged or attorney-client Customer information to Affirm, any of its affiliates, Celtic Bank or Cross River Bank;
   4. Avoids any conflicts of interest by, for example, not recommending a particular Affirm Product to a Customer (out of self-interest) and not representing Affirm in other matters, and Professional shall notify AffiniPay if Professional has ever represented or is asked to represent AffiniPay, Affirm (or any of its affiliates or bank partners); 
   5. Not have a financial or ownership interest in AffiniPay, Affirm (or any of its affiliates, Celtic Bank or Cross River Bank), and Professional shall notify AffiniPay if Professional or any member of Professional has or comes to have a financial or ownership interest in AffiniPay, Affirm (or any of its affiliates or bank partners);
   6. Not make any assertion that a Customer owes it any amount for any transaction where Customer has executed a loan agreement for Affirm Services in connection with such transaction, including but not limited to asserting the existence of a mechanic’s lien in association therewith;
   7. Not access any consumer credit information of potential Customers or Customers in connection with the offering of Affirm Services;
   8. Not discriminate against or disadvantage Affirm Services transactions (relative to its transactions involving any other methods of payment) in any way, including, without limitation, by imposing any surcharge, fee or other amount on Customers solely because such Customer has used the Affirm Services in connection with Customer’s transaction with Professional or excluding Affirm Services transactions from receiving or participating in any discounts, rebates, savings, offers, incentives, or loyalty program benefits, points or rewards, which may be offered by Professional to its Customers in a manner such that the difference may result in a violation of Applicable Law, including the Truth in Lending Act;  
   9. Not make any statements, commitments, representations or warranties with respect to Affirm, or to the Affirm Services, or use any materials to promote the Affirm Services except as authorized in advance and in writing by Affirm or derived from and consistent in all respects with the training materials and other marketing materials provided to it by AffiniPay on behalf of Affirm; 
   10. Not utilize any autodialer, prerecorded or artificial voice message, or otherwise initiate any calls or text messages to consumers promoting or otherwise relating to the Affirm Services; 
   11. Require Customers to use Customers’ personal devices to complete the loan application process for the Services (Professional may not use any of Professional’s devices or directly assist Customers in their loan applications for the Services); 
   12. Do not discuss Affirm or the Services at any place other than Professional's usual place of business (no discussions in places such as a customer’s home, a consumer’s workplace or in dormitory lounges or at facilities rented on a temporary or short-term basis, such as hotel or motel rooms, convention centers, fairgrounds, and restaurants); 
   13. Promptly notify AffiniPay of (i) any changes to Professional Services for Customers that would result in a change to the cost of Professional Services that have been submitted for financing through the Affirm Services by sending such changes to AffiniPay through AffiniPay’s systems and (ii) any complaints by a Customer regarding the Affirm Services; and
   14. Will not market or offer Affirm Services to a Customer who is an entity client of Professional, including corporations, partnerships, and sole proprietorships, and would use the Services for commercial or business purposes. 
2. Representations, Warranties and Covenants. Professional hereby represents and warrants to AffiniPay, as of the Effective Date and on each day during the term of this Agreement, that:
   1. it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or formation;
   2. it is duly qualified and in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business require such qualification;
   3. it has the requisite power and authority and the legal right to conduct its business as now conducted and hereafter contemplated to be conducted;
   4. it has all necessary licenses, permits, consents or approvals from or by, and has made all necessary notices to, all governmental authorities, state bar, licensing board or courts having jurisdiction, to the extent required for the Professional Services;
   5. it is in compliance with its organizational documents;
   6. it has never violated any United States federal, state, local or administrative law (including common law), statute, rule or regulation, court rules, bar rules or bar guidance regarding financing arrangements (“Financing Arrangement Rules”); 
   7. it will comply with the conditions of ABA Opinion 484 to the extent not in conflict with the Financing Arrangement Rules; 
   8. it will comply with any training materials provided to it by AffiniPay on behalf of Affirm when promoting the Affirm Services to the extent not in conflict with the Financing Arrangement Rules;  
   9. (1) it has not ceased to pay its debts in the ordinary course of business nor is it unable to pay its debts as they become due, or (2) its financial condition is not such that the sum of its liabilities is greater than all of its assets;
   10. it will not market the Services to any customer or Customer who is compromised rationally or otherwise unable to provide informed consent;
   11. this Agreement shall not in any way be construed or applied to impact the independent and professional judgment of Professionals; and
   12. all forms of agreements Professionals provides to Customers are in compliance with Applicable Law.
3. Compliance with Applicable Law. Professionals shall comply in all respects with all United States federal, state, local or administrative law (including common law), statute, rule or regulation, regulatory guidance, court rules, bar rules, bar guidance or requirement or bulletin, decree or order, or any other interpretation of a governmental authority or professional regulator (e.g. the applicable state bar or licensing bar) thereunder, applicable to the offering of its services to Customers, including any Financing Arrangement Rules (collectively, “Applicable Law”). 
4. Enforcement.  Except as expressly set forth herein, this Agreement is for the benefit of, and may be enforced only by, AffiniPay and Professional and their respective successors and permitted transferees and assignees, and is not for the benefit of, and may not be enforced by, any third party. Notwithstanding the foregoing, Professional and AffiniPay each acknowledge and agrees that Affirm will have the right to (i) perform and/or enforce any and all rights and/or obligations of AffiniPay hereunder except as prohibited by Applicable Law and (ii) step into the shoes of AffiniPay as if AffiniPay was performing and/or enforcing such rights and/or obligations.
5. Termination.  AffiniPay may immediately terminate this Agreement at any time for any reason upon written notice to Professional. Professional further acknowledges and agrees that Affirm has the right to require AffiniPay to terminate this Agreement at any time for any reason upon written notice to AffiniPay. Professional may terminate this Agreement for any reason within 30 days of written notice to AffiniPay.
6. Order of Precedence.  In the event of any conflicts or inconsistencies between the terms and conditions of this Agreement and the terms and conditions stated on AffiniPay’s website, the terms and conditions of this Agreement shall control.

Appendix D
Form of Guarantee

This Guarantee is delivered and executed by the undersigned (“Guarantor”) in connection with that certain AffiniPay Services Agreement (the “Agreement”) between customer of AffiniPay named below as “Customer” and AffiniPay, LLC (“AffiniPay”). Capitalized terms used but not defined in this Guarantee will have the meanings set forth in the Agreement.

In exchange for AffiniPay’s acceptance of the Agreement, Guarantor unconditionally and irrevocably guarantees the full payment and performance of the obligations of Customer under the Agreement, as it now exists or as modified from time to time, whether before or after termination or expiration of the Agreement and whether or not the Customer has received notice of any amendment of the Agreement. Guarantor waives notice of default by Customer and agrees to indemnify AffiniPay for any and all amounts due from Customer under the Agreement. AffiniPay will not be required to first proceed against Customer to enforce any remedy before proceeding against Guarantor. Guarantor agrees that this guaranty is irrevocable and continuing in nature and applies to all presently existing and future obligations of Customer, and further agrees that its liability hereunder will not be discharged or impaired by (i) any amendment to the Agreement, (ii) any bankruptcy, insolvency, reorganization or other event of Customer, or (iii) any circumstances whatsoever that constitute a defense or a legal or equitable discharge of a guarantor or surety, whether foreseen or unforeseen. Guarantor hereby unconditionally and irrevocably waives each and every such defense and any right to revoke this guaranty. Guarantor understands that this is a Guaranty of payment and not of collection and that AffiniPay is relying upon this Guaranty in entering into the Agreement. This Guaranty will be governed by and construed under the laws of the State of Texas, without reference to any choice of law doctrine. Any action to enforce this guaranty against Guarantor may be brought in any court having jurisdiction thereof.

Acknowledged and Agreed:

(Signature)

(Printed Name)

(Date)

Customer Name: